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m HASSMI ST., II.Y. 



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Can ADA Law Journal 




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A MAGAZINE OP JUEISPEUDENCE. 



^AUtA iTD gvimt g^ivkDt ^Avtfoit. 



VOL, III.— JULY TO DECEMBER, 1867. 



SRdftttvt At : 

PBINTBD AND PUBLISHED BY JOHN LOVELL, ST. NIC3H0LAS STREET. 

1867. 



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SA.^i'A^ 



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CONTENTS OF VOL. IIi: 



PAGE 

Proem to Volume the Third 1 

Queen's Counsel '. 1 

Monthly Notes of Cases 1 

Indian Marriages 1 

The Retirement of Mr. Justice Aylwin 2 

The Code of Civil Procedure 2 

Registration in the Province of Quebec 2 

Brammond County * 3 

Appointments 3, 28, 75, 99, 125 

Notices of New Publications... 3, 4, 74, 123 

Mr. F. W. Torrance on Eloquence .... 4 
Bankruptcy, Assignments, 8, 28, 72, 75, 

100, 124 

Law Journal Reports. ..10, 56, 83, 117, 125 

^Monthly Notes 17, 36, 65, 90, 119, 142 

^Recent English DeciBion8....20, 70, 94^ 116 

The U. S. Judiciary 23, 42 

Lawyers in the House of Commons .... 24 

Lrish Law Appointments 24 

Report of the Gfeneial Council of the 

Bar 25 

Increase of Sentence 26 

Defitiency of Judges in English Courts 26 

Privy Coimcil Case — In re Wallace. ... 29 
Legal Status of the Church of England 

in the Colonies 39 

Digest of Law Commission 45 

The Marriage Laws in Upper Canada.. 49 

Writs of Error 49 



PAOS 

Judicial Changes in England 51 

Corruption of the Bench in the United 

States .y 52 

Admissions to Legal Study. 73 

Judicial Pensions. . . .' 73 

Law Reform ii^jjnglaSid 73 

The Unanim^pof Ari^ 75 

Michaelmas'^rvin England 78 

A Book alAt 4^wyers 80, 108 

A Quak|MuJ# 96 

The Thf ee Degrees of Comparison 96 

Our Enqudte System 97 

The Court of Appeals !. ^T ' 

Nova Scotia Judges ' 98 

Privy Council 98 

The Howland Will Case 98 

RegulsB Generalefi 99 

An American Lawyer in London 101 

The Bench and Bar at Hong Kong 107 

Squatters 121 

The Landlord's Privilege 121 

The Court of Appeals 121 

Five and Twenty Years Ago 121 

Supplementary Factums in the Court 

of Appeials ,. . 122 

The Patent Laws 122 

Privy Council— Scott v. Paquet.. ..... 136 

Sngular Divoroe Suit J44 



July, 1867.] 



THE CANADA LAW JOURNAL. 



Itte (Ssnstfa i^sur f Durnsl 



Vol. m. 



JULY, 1867. 



No. 1. 



PROEM TO VOLUME THE THIRD. 

As the beginning of the Third Volume of 
the Law Journal coincides with the begin- 
ning of a new era in our history, we have 
thought proper to drop the prefix " Lower" 
from the title, and to adopt the more general 
title of " The Canada Law Journal." For 
while the jurisprudence of that central por- 
tion of Canada, hitherto styled Lower Cana- 
da, will continue to receive special attention 
in our pages, it has become necessary that 
the scope of the Law Journal should be en- 
larged so as to include the jurisprudence of 
the Confederation, and to keep pace vnth the 
legislation of the House of Commons, to which 
have been confided the important subjects of 
Bankruptcy, Bills of Exchange and Promis- 
sory Notes, Banking, Marriage and Divorce, 
^c, and the Criminal Law. 

There is no good reason why there should 
mot be a gradual assimilation of^the law of 
all parts of the Dominion of Canada. In all 
civilized countries, the differences between 
the besjb legal minds are narrovnng and dwin- 
dling away. The writings and dicta of Ame- 
rican jurists are received with respect in the 
highest European Courts, and vice versa. All 
educated men must feel it their duty to do 
what they can towards assisting the establish- 
ment of a broad and uniform jurisprudence. 



QUEEN'S COUNSEL. 

The creation in one day of two dozen 
Queen's Counsel in the Province of Quebec 
alone has naturally excited much criticism. 
Some received the announcement with violent 
indignation, others with contemptuous indif- 
ference, but no one, as far as we have ob- 
served, has had a word to say in justification 
or apology. The precise amount of honor 
attaching to the letters Q. C. was previously 
somewhat vague and uncertain. We knew 
that the title was frequently conferred as a 
xeward for electioneering services ; that it was 



not uncommonly bestowed on partizans of 
slight professional repute while it was with- 
held from men of sterling worth who meddled 
not in "the muddy pool of politics;" but it 
was still held in some estimation, and the 
silk gown was not without dignity. Now, 
however, all ambiguity on the subject has 
been removed. That which in England is 
the victor's palm, the prize of a good fight, 
the reward of a successful career, has here 
been conferred, in some instances upon gen- 
tlemen who have long ceased to practise their 
profession, and in others upon poUticai ad- 
herents of dubious antecedents. The rank of 
Q. C. has fallen to somewhat the same level 
as that of J. P., or some of the other titles 
which have been lavishly bestowed, and if 
there were not another appointment for the 
next twenty years, the prostrate dignity would 
hardly recover from the shock. 



MONTHLY NOTES OF CASES. 

With the present volume of the Law Jour- 
nal is commenced a series of Notes of such 
cases as are either not of sufficient importance 
to require an extended report, or which our 
limited space will not permit us to report at 
length, but which nevertheless may afford 
some useful hints. These Monthly Notes 
will contain as nearly as possible the ipsis- 
sima verba of the judges, Cpi^uned of redun- 
dancies and repetitions,) taken with the aid 
of stenography, and will be prepared specially 
for the Law Journal. Other publications 
reprinting them will please give credit. 



INDLA.N MARRLiGES. 

A case of great interest, recently decided 
by Mr. Justice Monk, will be founcl in the 
present number. The points decided by the 
learned judge are that the connection of a 
white man with an Indian woman in the In- 
dian territory was a marriage valid in Chris- 
tendom, and could not be repudiated ; that a 
person going from Lower Canada to the Indian 
territory on business, and leading a roaming 
life in that country for twenty-eight years, 
never lost his original domicile, and that his 
children by the Indian wife were legitimate. 



THE CANADA LAW JOURNAL. 



[July, 186r^ 



and entitled to share the community accord- 
ing to the Laws of Lower Canada. 

The question of the validity of such a mar- 
riage is .new, and as the case will probably be 
carried to the Privy Council, we may in course 
of time look for an interesting discussion of 
the subject by the highest legal authorities. 
It may be within the recollection of our read- 
ers that the validity of a Mormon marriage 
was recently considered in England. Mar- 
riage, as understood in Christendom, was de 
fined by Judge Wildb to be the voluntary 
union for life of one man and one woman to 
the ezclusum of all others^ and he held that a 
marriage in a country where polygamy is 
lawful between a man and woman who pro- 
fess a faith which allows polygamy is not a 
marriage as understood in Christendom. A 
Mormon marriage was therefore held invalid. 
In the case of Connolly, though we think it to 
be taking a very extreme view to say that po- 
' lygamy was not lawful in the Indian country, 
yet the husband of course did not profess a 
faith which permitted polygamy. 



THE RETIREMENT OF MR. JUSTICE 

AYLWIN. 

The Bench of the Province of Quebec has 
sustained a serious loss in Mr, Justice Ayl- 
wiN, who announced his resignation of office 
during the last term of the Court of Queen's 
Bench sitting on the Appeal side. It would be 
faint praise to speak of this learned judge as 
one of the ablest on the Canadian Bench, for 
it would be difficult, if not impossible, to name 
any one so highly gifled with the qualities 
which make a great judge. Clear and forcible 
in his statement of facts, powerful and con- 
vincing in his reasoning, and singularly pleas- 
ing and impressive in his delivery, he never 
failed to give the hearer the idea that he was 
listening to a great man. The vigor and abi- 
lity with which he presided over the Crown 
sittings of the Queen's Bench made his name 
a household word throughout Lower Canada, 
and gained for that Court an unwonted pres- 
tige. Perhaps somewhat of the impression of 
ability he inspired was due to the rapidity 
with which he arrived at his conclusions. It 
seemed as though it were impossible for him 



to be in doubt. At all events, he seldom or 
never betrayed the slightest hesitation or uncer- 
tainty in the delivery of his decisions. Kate, 
cited by Morgan, thus wrote of him : — *' Mr. 
Atlwik bore the reputation of the best debater 
in the Assembly, a man of infinite adroitness 
and lawyer-like sagacity, skilled in making the- 
worse appear the better reason, and in expos- 
ing the weakness of an adversary's case.''' 
The fame which he won at the bar and in the 
Legislature has been greatly augmented by his 
judicial career, and even while afflicted with 
ill health and sickness, his zealous attentioi> 
to public duties has been such as to excite 
general admiration. 

The reasons given by the learned judge for 
his retirement were not of the most pleasant 
nature. He expressed deep dissatisfaction at 
the obstacles that lay in the way of a prompt 
and satisfactory administration of justice — 
obstacles in part created by the Executive, in 
part by his own colleagues, and in part by the 
unseasonable loquacity of a few members or 
the bar. However this may be, we trust that 
the great abilities of Mr. Justice AvLwiy are 
not yet wholly lost to the profession and the 
public, and that, being Tar from the evening of 
life, he will yet win new claims to the grati- 
tude of his country. 



THE CODE OF CIVIL PROCEDURE. 



The Code of Civil Procedure of Lower 
Canada, revised and corrected in accordance 
with the Act of last Session, by Royal Procla- 
mation dated the 22d of June, was declared to 
come into force from and after the 28th of 
June, 1867. 



REGISTRATION IN THE PROVINCE OP 

QUEBEC. 

An important change is about to be made 
in the mode of registration, under the provi- 
sions of Arts. 2166—2173 of the Civil Code. 
It will be remembered that these articles pro- 
vide for the making of plans by the Commis- 
sioner of Crown Lands, upon which plans, each 
lot of land is to be designated by a number. 
Copies of the plans and books of reference are 
to be deposited in the Registry Offices, and 
notice thereof given by proclamation, afler 



July, 1867.] 



THE CANADA LAW JOURNAL. 



which notaries passing adts concerning im- 
moveables indicated on the plans, are bound 
to designate them by the number given to 
them upon the plans. Further, within eigh- 
teen months after proclamation bringing the 
provisions of Art. 2168 into force in any regis- 
tration division, the registration of any real 
right upon any lot of land within such divi- 
sion, must be renewed, failing which, such 
rights have no effect against other creditors 
and subsequent purchasers whose claims have 
been regularly registered. By proclamation, 
dated 28th June, 1867, notice is given that the 
plan and book of reference for the first Regis- 
tration District of the County of Huntingdon, 
comprising the County of Laprairie, has been 
deposited, and the 2nd of November next is 
fixed for the coming into force of Art. 2168, 
60 that within eighteen months after the 2nd 
November, the registration of all hypothecs 
in the County of Laprairie must be renewed. 

DRUMMOND COUNTY. 

By proclamation dated June 28, the terms 
of the Circuit Court for the County of Drum- 
mond have been altered and fixed as follows : 
Three terms, each of five days, from the 20th 
to the 24th of January, June, and September, 
both days inclusive. 



APPOINTMENTS. 



The Hon. Sir John A. Macdonald, E. C. B., 
Hon. George Etienne Cartier, C.B., Hon. Sam- 
uel Leonard Tilley, C.B., Hon. Alexander Til- 
loch Gait, C.B., Hon. William McDougall, C. 
B., Hon. William Pearce Howland,C.B., Hon. 
Adams George Archibald, Hon. Adam John- 
ston Fergttsson Blair, Hon. Peter Mitchell, 
Hon. Alexander Campbell, Hon. Jean Charles 
Chapais, Hon. Hector Louis Langevin, and 
Hon. Edward Kenny, to be members of the 
Queen's Privy Council for Canada. (Gazet- 
ted July 1, 1867. 

The Hon. Sir John A. Macdonald, E. C. B. 
to be Minister of Justice and Attorney Gene- 
ral. (Gazetted July 1, 186^.) 

Charles Prentice Cleveland, of the village 
of Ri<^mond, Esq., to be Registrar of the 
County of Richmond. (Gazetted June 24, 
1867.) 



Jules Chevallier, of the town of Sorel, Esq., 
to be Registrar of the County of Richelieu. 
(Gazetted June 24, 1867.) 

Louis Baudry, and Pierre J. U. Baudry, to 
be jointly Prothonotary, Clerk of the Circuit 
(3ourt, Clerk of the Crown, and Clerk of the 
Peace, for the District of Beauhamois. 

Henry Ogden Andrews, Esq., the Hon. Jo- 
seph Noel Boss^, Jacques Cr6mazie, Robert 
Mackay, Charles Andr^ Leblanc, Pierre L^- 
gar^, James Armstrong, G6ddon Ouimet, 
EugdneUrgile Pich6, Christopher Dunkin, 
Louis B. Napol6on Casault, George Irvine, 
Frederick William Torrance, George Futvoye, 
Frederick C. Vannovous, Louis Charles Bou- 
cher de Niverville, Francois Pierre Pomin- 
ville, William Hoste Webb, Thomas Weston 
Ritchie, Thomas Eennedy Ramsay, Philippe 
Joseph JolicoBur, Henry Joseph O'Conlon 
Clarke, Paul Denis, and Henri Elz6ar Tas- 
chereau. Esquires, to be Her Majesty's Coun- 
sel learned in the Law, to take rank and pre- 
cedence according to the date of their commis- 
sions as advocates. (Gazetted June 28, 1867.) 

Cyrille Delagrave, of the City of Quebec, 
Esq., Advocate, Norbert Dumas, of the City 
of Montreal, Esq., Advocate, and Jean-Bte., 
Yarin, of the Village of Laprairie, Esq., No- 
tary Public, to be Seigniorial Commissioners 
under C. S. L. C. cap. 41. (Gazetted June 
1, 1867. 

Joseph A. Biondin, of B^canoour, Esq., 
Registrar for the County of Nicolet. (Gazet- 
ted June 1, 1867.) 

Didaoe Tass^, of the town of Iberville, Esq., 
Registrar of the County of Iberville. Gazet- 
ted June 1, 1867.) 

Edward Borne, of the Magdalen Islands, 
Esq., Registrar for the Registration Division 
of the Magdalen Islands. (Gazetted June 29, 
1867.) 

James Brend Batten, of Westminster^ Eng^ 
land, Esq., Solicitor, to be a Commissioner 
for taking affidavits in and for the Canadian 
Courts, in England. (Gazetted June 15, 1867.) 

Alphabetical Index to Statutes.^ — ^By 
T. P. Butler, B..C. L., Advocate. — This is 
an Index to all the. Statutes passed ^nce the 
date of the Consolidated Statutes (1859), with 
an Appendix showing the amendments to the 



THE CANADA LAW JOURNAL. 



LJuly, 186r.. 



Consolidated Statates. Members of the pro- 
fession thus have in a convenient form what 
almost all find it necessary to do for them- 
selves, in order to keep pace with new enact- 
ments. 

Tableau General dbs Avocat's. — This list 
of Advocates in Lower Canada, whose diplo- 
mas have been enregistered hy the General 
Council, has now been issued by Mr. Gon- 
ZALVE DouTRE, the Secretary-Treasurer to 
the General Council. The list contains the 
names of about one thousand advocates, many 
of whom, however, have left the profession 
for other avocations. No one has the right 
to practice unless his name is inscribed on 
this Boll, with the exception of those recently 
admitted to the Bar, whose names will be 
inserted in due course. 



MR. F. W. TORRANCE ON ELOQUENCE. 

The following is the able address of Mr. F. 
W. ToBRAKCE, Professor of Civil Law, at the 
last Convocation of the McGill University. 
It was addressed chiefly to the law students 
present, and we have much pleasure in lay- 
ing it before a wider legal circle. 

Mr. Chairman, Gentlemen, and Members 
of Convocation j I desire to speak to you on 
the subject of oratory or eloquence— the art 
of oratory or eloquence. Art itself has late- 
ly been defined by John Stuart Mill, the po- 
litical philosopher, in an address which he 
delivered to the students of a Scotch Univer- 
sity,* last February. He defines art as the 
endeavour after perfection in execution. He 
says that besides the intellectual and moral 
education promoted by universities, there is a 
third division barely inferior to them, and not 
less needful to the completion of the human 
being. He meant the aesthetic branch ; the 
culture which comes through poetry and art, 
and may be described as the education of the 
feelings, atid the cultivation of the beautiful. 
The art of eloquence is certainly connected 
with the education of the feelings and 
the cultivation of the beautiful, and I may 
therefore define it as the endeavour aft«r 
perfection in speaking. I cannot agree 

*St. Andrews. 



with those who reganl oratory as obso- 
lete. The faculty of speech is one of the no- 
blest of man's gifts, and so long as the living 
voice appeals as it does to our sympathies 
and social instincts, the art of oratory or the 
endeavour after perfection in the use of the 
living voice cannot be obsolete. 

The art of oratory is among the noblest — 
is perhaps the noblest among human arts. It 
is also more closely allied, than we oft^n, 
think, to poetry and music } and it is as cap- 
able of cultivation as any fine art, like music^ 
painting, and sculpture. 

In oratory, two things widely different have 
to be considered. 

First. — The composition of an oration or 
speech. 

Secondly. — Its delivery. 

First, as to its composition. I will assume 
that you have a certain power or copious- 
ness of expression ; that you have words at 
command suited to your subject, though in 
this respect the resources of men differ great- 
ly. I have somewhere seen it estimated^ 
that a labouring man commands about 30O 
words, while the average of educated men 
commands perhaps 3000 or 4000. A poet or 
orator of distinction will have some 10,000, 
while a writer like Shakeepere Jias used not 
fewer than 15,000. 

I will also assume that your mind is re- 
plete with knowledge j that your conclusions 
are taken ] that your arguments are ready. 
This is much, but it is not all. In what man- 
ner will your ideas be put forth, what energy 
or vivacity will there be in your expressions^ 
what elegance or grace ? 

It is of much importance as regards im- 
pressiveness, where you place your key words 
in a sentence, at the beginning, middle or 
end, according to the meaning you wish to 
convey. There should be a complete har- 
mony between the words and ideas, the right 
word should be in the right place. The an- 
cient orators and poets aimed at an impres- 
sive rhythm and a musical effect An in- 
stance of this is given in Cicero in his descrip- 
tion of y erres ; and a famous instance of ac- 
cord between word and idea you may remem- 
ber in Virgil, in hit description of the 
galloping of a horse in the 2d ^neid. Here- 



July, 1867.] 



THE CANADA LAW JOURNAL. 



xhe sound of the words is strikingly in unison 
with the idea to be expressed. 

Lord Brougham says, " Our greatest ora- 
tors have excelled by a careful attention to 
rhythm, some of the finest passages of modern 
eloquence owe their unparalleled success, 
undeniably to the adoption of those Iambic 
measures which thrilled and delighted the 
•Roman forum, and the Dactylus and Pseoni- 
-cus, which were the luxury of the Attic Ec- 
clesia. Witness the former, he adds, in Mr. 
Erskine's celebrated passage respecting the 
Indian chief, and the latter in Mr. Grattan's 
peroration to his speech on Irish Indepen- 
dence." 

We cannot do better than look at the prac- 
tice of the ancients in regard to the rhetorical 
^rt, in which their remarkable distinction was 
the natural consequence of extraordinary care 
and pains. The masters taught that what- 
^ever might be the qualities of the intellect 
and the gifts of nature, these advantages were 
•of no avail if they were hot aided by stubborn 
labor and by persistent exercises in reading, 
writing, and speaking. Cicero advised never 
to speak with negligence, and to give conver- 
sation the degree of completeness suitable to 
the subject 5 but the best method, in the 
opinion of the teachers, was to write much. 
^* Write," said Cicero, ** and in this way you 
-will the better learn to speak." " The pen," 
he says elsewhere, '^ is the best master to 
teach the art of practical sj;eech." Quin- 
tilian, the most judicious of counsellors, 
^advised writing, even though the manuscript 
was laid aside, in speaking. " We must write," 
he said, ^'with much care and very often j 
without which the gift of improvisation or 
extemporary speaking will be a vain flow of 
words." 

It is interesting to notice that the ancient 
orators had a great dislike to extemporary 
speaking. Cicero, even in the busiest period of 
his Hfe, wrote the most important jiart of his 
pleadings. Augustus committed his speeches 
to memory. Pliny the younger, who was full 
of intelligence and grace, only extemporized 
when compelled by necessity, and said that 
there was only one way of arriving at good 
speaking — treading much, writing much, and 
speaking much. 



Another fact which proves the highly arti- 
ficial and laborious nature of ancient oratory, 
was the preparation of proemia or introduc- 
tions of speeches never delivered. Of these 
proeniia many are preserved. It would seem 
that these introductions were kept for use to 
meet a demand that might suddenly be made 
upon a speaker, and for this purpose were 
held in the memory. Fifty-six of these, writ- 
ten by Demosthenes, have reached us. The 
elaboration of their compositions by the an- 
cients was most remarkable. Plato, under 
whom Demosthenes is supposed to have 
studied, was noted for the care which he took 
of his diction. Cicero affirmed that Plato 
wrote by a kind of divine faculty, and it was 
commonly said that if the Father of the Gods 
had spoken in Greek, he would have used no 
other language than Plato* s. The first of 
ancient critics said of his diction that it re- 
sembled a piece of sculpture or chasing rather 
than written composition. He continued to 
polish it till extreme old age; and a remark- 
able instance is given of a note-book he kept, 
in which he had written the first words of his 
Treatise on Government several times over in 
different arrangements. 

Another notable characteristic of the an. 
cient orators was the respect in which they 
held their audiences, as possessing a true dis- 
cernment of oratorical excellence. The anec- 
dote is related of Demosthenes, that when 
Pytheas taunted him with his speeches smell- 
ing of the lamp, tis answer was, " True, but 
your lamp and mine do not give their per. 
fume to the same labors." Cicero remarks 
himself, that it is astonishing that though 
there is the greatest difference between the 
educated and the uneducated man in action, 
there is not much in their judgments. On this 
Lord Brougham says : '' The best speakers 
of all times have never failed to find that they 
could not speak too well and too carefully to 
a popular assembly ; that if they spoke their 
best, the best they could address to the most 
learned and critical assembly, they were sure 
to succeed." 

"If," says Henry Rogers, in his charming 
Grey son Letters, "If you would produce any 
lively or durable impression on any audience 
(rustic or polished matters not), you must 



THE CANADA LAW JOURNAL. 



[July, 186T- 



give them thoughts that strike^ and these 
must he expressed in apt words ; and to speak 
in this fashion will requir^ depend upon it^ 
very careful study." 

In connection with this part of my subject, 
I may be allowed to relate an anecdote of 
Arago, the great French astronomer, who 
had many gifts and much success as a popu- 
lar speaker. His practice in beginning a 
lecture was to select in the audience the dull- 
est and most stupid-looking person he could 
see, and during his lecture direct all his ob- 
servations and appeals to this individual in 
particular. He was not satisfied that his lec- 
ture was successful or produced an efiect 
such as he desired among the audience, until 
he noticed scintillations of intelligence in the 
vacant countenance of the one auditor whom 
he so flatteringly noticed. Following this 
course one evening in a town in the south of 
France, where he was lecturing, he spent the 
next evening in company with some of the 
townspeople, and among them the indi- 
vidual in question. The latter did not know 
why Arago had preferred him the night be- 
fore, but had observed and been singularly 
flattered by the preference of the great as- 
tronomer, and during the evening loudly ex- 
pressed his -admiration of the lecturer, ex- 
claiming that M. Arago was a most charming 
and fascinating person, for he seemed the 
night before to address all the observations of 
his exceedingly interesting lecture to him in 
particular. 

Next, as to delivery. This, for success, is 
as important as the matter and manner of 
composition. Here we have to consider both 
the action of the speaker and his voice, and 
I affirm that the greatest orators have given 
heed to voice and action as much as famous 
actors and famous singers. It is related of 
Demosthenes, by Plutarch, that returning 
home, when a young man, in discomfiture 
after failure to obtain a hearing of the people, 
he met his ftiend, the comedian Satyrus, 
who, noticing his despondency, inquired the 
cause. On being told, he asked Demosthenes 
^to recite a famous passage in one of their 
poets, which he did. The actor recited it 
after him, but in a style, and with an effect 
so different, that Demosthenes saw at once 



his own deficiencies in delivery, and resolute- 
ly set himself to remedying them. Besides 
studying under Satyrus, he is also said to 
have taken lessons from another actor named 
Andronicus. 

His great antagonist, ^schines, was ban- 
ished to Rhodes after the famous contest for 
the Grown, and in his exile read to the Rho- 
dians his own speech, which was much 
adnaired, and afterwards that of his rival 
Demosthenes, which elicited still greater 
applause. Whereupon ^schines, not dispa- 
raging or bdittling his opponent, as is too often 
our wont, exclaimed, <<What if you had 
heard the beast himself." 

Cicero was equally solicitous about his 
action and delivery. He studied under Molo,. 
the rhetorician, first at Rome, and afterwards 
in Greece. Even when holding the office of 
PrsBtor at Rome, he attended the school of 
Gnipho, a celebrated rhetorician, and he is 
known to have studied delivery under Roscius 
and ^sopus, who were actors, the one in 
comedy, the other in tragedy. 

I need hardly remind you of the imnoortai 
speech of Hamlet to the players, and his 
counsel not to tear a passion to tatters — '< to 
suit the action to the word, the word to the 
action." 

George Whitfield, the great pulpit orator 
of the last century, had a voice of such power 
and melody, that he could effectively address 
an assembly of 30,000 people, and he would^ 
it was said, make you weep by his pronun- 
ciation of the word Mesopotamia. It was 
said that so much did his delivery improve 
by repetition that he did not consider that he 
had attained to his full power in the delivery 
of a discourse until he had delivered it fifty 
times. Dr. Franklin singularly confirms this 
in his inimitable autobiography, where he 
says, ''By hearing him often, I came to dis- 
tinguish easily between sermons newly com- 
posed and those which he had often preached 
in the course of his travels. His delivery of 
the latter was so improved, and every accent, 
every emphasis, every modulation of voice 
was so perfectly turned and well placed^ that 
without being interested in the subject, one 
could not help being pleased with the dis- 
course—a pleasure of much the same kind 



July, 1867.] 



THE CANADA LAW JOURNAL, 



'with that received from an excellent piece of 
music." 

How much a deficient action and a monot- 
onous delivery mar a discourse, I need not 
^ay. "How «om«fl it," said an English 
Bishop to the actor Garrick, '*that though 
we clergy lareat of the most solemn realities 
in life, we are not listened -to at all, whereas 
you actors, though your subjects have no real 
-existence, are so much run after." Garrick 
replied, '^ the reason, my lord, is that we ac- 
tors play our parts as if they were tremendous 
realities, whereas you clergy deal with your 
solemn topics, as if you did not believe in 
^hem at all." 

Let us now take modern instances of men 
who have distinguished themselves by orato- 
rical power. Without any doubt, the most 
eminent example of judicial eloquence in 
England has been exhibited by William Mur- 
ray, afterwards Earl of Mansfield, and Lord 
Ohief Justice of England. Lord Campbell, 
his biographer, writes of him : " Those who 
look upon him with admiration as the antag- 
onist of Chatham, and who would rival his 
fame, should be undeceived if they suppose 
that oratorical skill is merely the gift of 
nature, and should know by what laborious 
efforts it is acquired. He read systematically 
all that had been written upon the subject, 
and he made himself familiar with all the 
ancient orators. Aspiring to be a lawyer and 
a statesman, Cicero was naturally his chief 
favorite : and he used to declare there was 
not a single oration extant of this illustrious 
ornament of the forum and the Senate house, 
which he had not, when at Oxford, translated 
into English, and after an interval, according 
to /the best of his ability, re-translated into 
Latin." 

William Pitt, was second to none as a Par- 
liamentary, orator in the generation which 
saw Burke, Fox and Sheridan. Macaulay 
says: ''His i early friends used to talk, long 
after his dealjbiy of the just emphasis and the 
melodious . cadence with which they had 
heard him recite the incomparable speech of 
Belial. He had indeed been carefully trained 
from infancy in the art of managing his voice 
— a voice naturally clear and deep-toned. 
His father, whose oratory owed no small part 



of its efiect to that art, had been a most skil- 
ful and judicious instructor." 

Of all the remains of antiquity, the ora- 
tions were those on which he bestowed the 
most minute examination. His favorite em- 
ployment was to compare harangues on op- 
posite sides of the same question, to analyse 
ihem, and to observe which of the arguments 
of the first speaker were refuted by the second, 
which were evaded, and which were left un- 
touched. 

On one occasion, when a mere youth, he 
was introduced on the steps of the throne in 
the House of Lords to Fox, who used after- 
wards to relate that, as the discussion pro- 
ceeded, Pitt repeatedly turned lo him, and 
said, " But surely, Mr. Fox, that might be 
met thus 5" or, "yes ; he lays himself open to 
this retort." What the particular criticisms, 
were Fox had forgotten, but he said that he 
was much struck at the time by the precocity 
of a lad who throughout the whole sitting 
seemed to be thinking only how all the 
speeches on both sides could be answered. 

As to forensic eloquence, the eloquence of 
the bar, the most remarkable at the English 
Bar was Erskine, who was for some time a 
subaltern in the British army. For two years 
he was shut up in the island of Minorca, and 
laboriously and systematically went through 
a course of English literature. Milton was 
his great delight, and Lord Brougham says, 
" the noble speeches in Paradise Lost may be 
deemed as good a substitute as could be dis- 
covered by the future orator for the immortal 
originals in the Greek models." He was, 
likewise, so familiar with Shakespere, that he 
could almost, it has been said, like Person, 
have held conversations on all subjects for 
days together in the phrases of this great 
dramatist. Dryden and Pope he not only 
perused and re-perused, but got almost en- 
tirely by heart. 

I have mentioned the names of actors in 
coAnection with the. rhetorical art, and the 
study of action and delivery. It is said of the 
great Mrs. Siddons that she studied her profes- 
sion for a number, of years, . and played her 
parts in the provinces for a long time, before a 
London audience would appreciate her merits. 
It would appear as if the study and practice 



8 



THE CANADA LAW JOURNAL. 



[July, 1867. 



of many years were necessary to develop her 
great gifts and demonstrate her extraordinary 
genius. After the peace of 1815, she visited 
Paris, and as she stood in the public galleries 
of the Louvre, viewing the paintings, spec- 
tators who did not know who she was, gath- 
ered about her, unconsciously struck by the 
dignity of her carriage and gestures. 

The great Napoleon attached not undue 
importance to his public appearances as Em- 
peror of the French, and did not hesitate to 
take lessons from Talma, the celebrated 
French actor, as to his carriage and attitudes 
in the Imperial state robes. 

I terminate my reference to modern exam- 
ples by citing from a remarkable letter of 
Lord Brougham, written in 1823, to the father 
of Lord Macaulay, on the education of the 
latter for the Bar. [This letter will be found 
entire in the June number of the Law Jour- 
nal.] 

In conclusion, you have seen from what I 
have said, the artificial nature of the excel- 
lence of great orators, and in particular that 
it would appear to be an indispensable con- 
dition of success that much labor be bestowed 
in the cultivation of the art. There must be 
much reading and much writing and much 
speaking. Further, it is an art which appeals 
to the highest faculties of our nature. It 
appeals to the imagination — to our sense of 
the beautifiil. Would you confer a pleasure 
in kind like that which has been conferred 
by a Siddons, a Garrick, a Rachel, a Ristori — 
more than that — wield an instrument capable 



of effecting the highest good ? Cultivate as- 
siduously and with earnest zeal the art of 
eloquence. Setting before you the grand 
models which have been preserved for our 
instruction and delight, enthusiastically im- 
bibe their spirit. In a new country like ours, 
beginning a new existence, we may safely 
affirm it is most important that the art we 
have been considering should receive its fullest 
development and win its highest reward. 
Among a free people such as we are, liberty 
of speech is the heritage of all. Let speech 
be fully cultivated, and the art of eloquence^ 
will win its noblest triumphs. A fine land- 
scape in outward nature — a fine work of art 
in statuary or painting — ^a work of genius in 
literature, calls forth our highest admiration. 
The art of eloquence can evoke admiration a& 
hearty — as intense — as enthusiastic. Fallow 
the example of those great men of old times- 
in Greece and Italy, and France, and Eng- 
land, who have been the tribunes of the peo- 
ple in the noblest sense — to appeal to the' 
reason of thinking, rational beings — to work 
upon the imagination — to interest and engage 
the feelings of men. I do hope and believe 
that in this new Dominion of Canada men 
will arise who will honour our new civi- 
lization — who by intellectual, accomplish- 
ments — by the communication of knowledge 
by word of mouth as well as by writing — by 
oratory as hy literature, will be the glory of 
our country and give her a name and place 
of honour among the civilized nations of the 
earth. 



BAKKEUPTCY— ASSIGNMENTS.—PKOVINCES OF QUEBEC AJ^D ONTARIO. 



ITAICS 0» INSOLVENT. 



SBSIDENCB. 



▲SSIGNBS. 



Adair, Johnston 

Barbe, Dame Julin 

Barbeau, Louis Caliste — 

Bedard, Jean Bte 

Begg, James H. L 

Bisnop, John 

Brabazon, Bobert 

Burkholder, Enoch B 

Burwash, Stephen 

Cannon, Jamea 

Chapman, William 

Cli£fe, Charles 

Cole, Cornelius 

Combs, John 

Davidson, John 

Davidson, Patrick 

Dinning, Henry 

Dorland, Paul Trumpour. 
Duckett, Joseph P. ...... . 



Montreal 
Montreal 
Levis 



Francistown 

St. Eugtoe 

Township Windsor 



Stoney Creek . 
Bruce Mines . 



St. Polycarpe. 



S.C.Wood...... 

A. B. Stewart . . . 
A. B. Stewart. . . 
Wm. Walker .... 

John A. Boe 

A. M. Smith. . . . 
John Holdan, jun 
Jas. McWhirter. . 

John Whyte 

Jos. B. Pearse.... 

J. McCrae 

H. C. Jones 

Alex. Martin 

W. F. Findlay. . . 
John Whyte.... 
Thomas CHarkson. 
Pemb. Patenon.. 
W. S. Bobinson.. 
T. Sauvageau . . . . 



BSSIPBNOB. 



Lindsay 

Montreal 

Montreal. .... 

fiuebec 
t. Thomas . . 
Bniutford. ... 
Goderich.. . « . 
Woodstock . . 

Montreal 

Norwood 

Wfaidsor 

Brockville . . . 

Brighton 

Hamilton . . . . 

Montreal 

Toronto 

Quebec 

Napanee 

Montreal 



DATS OP NO- 
TICB TO FILE. 
OLAIXS. 



June 4tb. 
Jane 12th. 
June 11th . 
June llth , 
June 8th. 
June 18 th. 
Junea4th. 
June 4th. 
May 25th. 
June 25th. 
June 12th . 
June 12th. 
June 25th . 
June 15th. 
May 29th . 
June 17th . 
May 20th. 
May Slst. 
May 22nd. 



July, 1867.] 



THE CANADA LAW JOURNAL. 



9 



BA17KBT7FTCY~ASSIGNH£NTS.-am^«ed. 



HAXX OV niSOLYXZrT. 



Duckett, Bichard J., indiyidually ) 
and as co-partner of R. J. Duck- } 
ett&Co ) 

£gan, John 

Bnifit, Christian, indiridually and ) 
as partner of John Ernst & Son. . j 

Farewell & Co., James 

Farmer, James 

Fletcher, Alexander 

Fletcher, Gordon D 

Forster, ICatthew W 

Forsman, John 

Gall, Alexander 

Geissman, Anthony, and Chs.Luidsee 

Giffin, Wm. Wells .' 

Hampton, Josiah 

Haywood, William 

Henderson, John 

Henderson. Robert 

Heron, William 

Hess, George 

Hill, Moses 

Hollister, Nelson P 

Hnsereau dit Lajennesse, BenJ 

James, Charles G. H 

Jeffrey, John 

Jordan & Brewer 

Kieyell, James 

Knight, Henry 

Lalande, Jean Bte 

Leeming, Thomas 

I^K£0> Christopher 

Livingston, Daniel 

Longden, Wm. Francis 

Lothrop, Fordyce Lawton 

McConnell, Rinaldo 

McCiillough, James.. 

McDonald, Patrick 

McGill, Hugh, indiyidnally and as \ 
partner of McGill & Martin ) 

iwoLean, John D. R 

McLellan, John 

Marchand, Peter. Jun 

Mee, James, & Bro. . . .- 

Miller, Elijah 

Miller, Bryce B 

Mongeon, Francois Xarier 

Moore, Thomas 

Morrison, Samuel W 

Mnlcahy, Thos 

Nangle, Thomas 

Nichol, Asa Harvard 

Northoott, John 

Parsons, John 

Paul, Bembler 

Perine, Moses B., Joseph S., and ) 
William D. ... I / 

Potter, John 

Price & Spencer 

Rielle, Joseph 

Roxford, Thomas , 

Rustanholt, George 

Sage. Thomas . 

Scott, John 

Sewell, Arthur Levingston 

Shannon, Patrick 

Skeeth, John 

Sudworth, Wright 

Thibaudeau, On^sime 

Thrall, John Hamilton 

Todd, George and G. M.-. 

Turcotte, Amant 

Turcotte, Joseph 

Yardon, Robert 

Wait, William 

Wheeler, Zachariah- 

Williams, Israel.. 

Wood, Nathan L., individually and \ 
as partner of Wood & Kirkland. . j 

Wri^t, Samuel Hurd , 

Zinkann, John, jun 



BBSIDBHOB. 



St. Polycarpe , 



Oshawa 

Percy 

Bowman ville. 
Bowmanyille. 



Woodstock. 
Windsor. . . 
Oil Springs 



Petrolia. 
Listowel 
Listowel 



Sutton, York Co. 



Montreal . 
Cornwall., 
Hamilton 



Towns'p East Flamboro' . 



Montreal 
Montreal 
Ottawa.. . 



St. Thomas 

Township of Hull 



Ridgetown. 



Strathroy 
Toronto. . . 



St. Paul of Abbottsford. , 
Ontario !. 



Tweed 



Montreal 



Uxbridge.. 
Wroxeter. 
Caledonia. 



Montreal 



St Bonaventure d'Upton 
Joliette 



Township of Grimsby ■ . . . 
Aylmer , 



ABBIOKEB. 



T. Sauvageau. . . . 



John Kerr 

Alex. McGregor 

Philips. Ross.... 
E. A. Macnschtan 
E. A.Macnachtan 
E. A. Maonachtan 
James Robinson . 
James McWhirter 

J. McCrae 

George Stevenson 

H. C. Jones 

Thomas Saunders 
George Stevenson 

Thos. Miller 

Thos. Miller 

Jas. £. Rutledge. 

S. Pollock 

A. Barker. 

W. S. RobiASon. . 

T. S. Brown 

A. B. Stewart... 
W. F. Findlay. . . 

R. M. Rose 

W. F. Findlay. . . 

Wm. Walker 

T.S.Brown 

A. B. Stewart 

Francis Clemow . 
Chas, Symon.. .. 
J. ArdaghRoe... 

H. C. Jones 

Francis Clemow . 
James Holden . . . 
W.S.Williams.. 

A B. Stewart.... 

Adam Hope 

Thos. Churcher. . 
George Stevenson 
Robert Watson... 
Thomas Clarkson 
George J. Gale... 

T. Sauvageau 

Thos. Webster. . . 

J. J. Mason 

John Kerr 

L. Lawrason 

John A. Roe 

Geo. D. Dickson. 
Robert Watson... 

W. T. Mason 

H. F. J. Jackson. 

Thos. Saunders.. 

John O. McCrae . 
T. Sauvageau — 

John C.Hall 

James Holden... 

S. Pollock 

W. F. Findlay. . . 
Wm. Walker .... 

Thos. Miller 

Chas. Rattray. . . . 
Jas. McWhirter. . 
T. Sauvageau. . . . 
Jas. McWhirter. . 

E. Newton 

T. S. Brown 

T. Sauva«eau. . . . 
Jas. Robinson.... 

L. Lawrason 

G. D. Dickson... 
J. J.Mason 



Wellesly 



W. F. Findlay... 

J. W. Fowke . . . . 
Al«x. McGrearor. 



BX8IDBS0B. 



Montreal. 



Toronto. 
Gait.... 



Montreal 

Cobourg. 

Cobourg 

Cobourg 

Markham.... 
Woodstock . . 

Windsor 

Samia 

Brockville.... 

Guelph 

Samis 

Stratford 

Stratford . . . . 
Streetsville... 

Goderich 

Markham — 

Napanee 

Montreal 

Montreal 

Hamilton. . . . 

Kingston 

Hamilton.... 

Quebec 

Montreal 

Montreal 

Ottawa 

Action 

St. Thomas... 



Ottawa.. . 
Whitby.. 
Napanee. 

Montreal. 



Hamilton. . . . 

London 

Samia 

Montreal 

Toronto 

Owen Sound. 



Brantford 

Hamilton.... 

Toronto 

London 

St. Thomas... 

Belleville 

Montreal 

Toronto 

Berlin, C.W. 

Guelph 



Hamilton. . . . 

Montreal 

Bolton 

Prince Albert 
Goderich;. . . . 

Hamilton 

Quebec 

Stratford 

Cornwall 

Woodstock . . 

Montreal 

Woodstock . 

Guelph 

Montreal 

Montreal 

Markham.... 

London 

Belleville .... 
Hamilton .... 

Hamilton.... 

Oshawa 

Gait. 



DATS or iro- 

TIOB TO FILB 
OLAIMB. 



May 22nd. 

May 18th. 

June26fh. 

June 26th. 

June 24th. 

July 2nd. 

July 2nd. 

June 28th. 

May 27th. 

June 12th. 

April ISth. 

May 81st. 

May 28th. 

June lOth. 

May 28th 

May 28th. 

June 22nd. 

June 27th. 

June Idth. 

June 14th. 

June 19th. 

June 10th. 

May 26th. 

June 17th. 

July 8rd. 

June 14th. 

June 28th. 

July 3rd. 

May dOth. 

July 2nd. 

May 28th. 

June 21st. 

May 28th. 

June nth. 

June 2l8t. 

June 7th. 

June 26th. 
May 28th. 
June 10th. 
June 24th. 
May 27th. 
June 12th. 
June 28th. 
June 1st. 
June 29th. 
May 28th. 
June 12th. 
June 24th. 
June 1st. 
June 26th. 
June 22nd. 
May 29th. 

May 20th. 

May 29th. 
June 28th. 
July 2nd. 
June 14th. 
May 23rd. 
June 17th. 
June 10th. 
May28tb. 
July 8rd. 
June 19th. 
May 22nd. 
June 19th. 
May Slst. 
June 6th. 
June nth. 
June 27th. 
June 8th. 
May 30th. 
June 12th. 

June 4th. 

June 6th. 
May 27th. 



10 



THE CANADA LAW JOURNAL. 



[July, 1867. 



LAW JOURNAL REPORTS. 

SUPERIOR COURT. 

April 12. 
LACOMBE ET AL. V. 

DAMBOURGES et al. 

Will — Olograph Codicil — Undue injiumce — 
tfhreasoname dispositions— Interdiction — 
State of mind of testator. 

The fsL6t of a legatee being aware that the 
testator has altered his will in favor of such 
legatee, is no ground for supposing that un- 
due influence was exerted to induce such 
alteration. 

Where the testator was not interdicted at 
the time the will was made, and where there 
is no proof of hallucination, the presumption 
is that he was of sound and disposing mind. 

There is nothing unreasonable or calculated 
to excite suspicion in the bequest by a testa- 
tor of une part d^enfans to two nieces, who 
had laboriously tended and nursed him and 
his wife for several years prior to their de- 
cease. 

This was an action brought by the heirs of 
Francois Xavier Boucher against two nieces 
of the deceased, for the purpose of setting 
aside a certain olograph codicil giving the de- 
fendants t^nej>ar^ d'enfyns in the estate. The 
conclusions of the declaration were that. the. 
defendants be summoned to declare whether 
they intended to avail themselves of the codi- 
cil, and to proceed to establish its authen- 
ticity J in default of which, that it be adjudged 
that the codicil was false and of no eflect; 
and, in the event of the verification of the 
document, that the defendants be declared 
disentitled to the legacies by reason of the ab- 
straction by them of moneys belonging to de- 
ceased ] further, that by reason of the causes 
stated, it be adjudged that the will could con- 
fer no advantage on the defendants. 

The plea set up the fcu^t that during several 
years preceding the death of the testator, the 
defendants had tenderly nursed and waited 
upon him, at a time when none of the chil- 
dren remained with him. The following ex- 
tract from the plea will show how the defen- 
dants came to reside with their uncle, and 
what followed : 

^* Qu'envirbn huit mois avant le d^ces de 
Dame Julie Olivier, femme du dit feu Fran- 
9ois Xavier Boucher, cette dernidre 6tant 
alors bien raalade, le dit Sr. Boucher et sa^irte 



dame envoydrent qu^rir avec instance la dite 
d^fienderesse Dame Agathe Dambonrgda^ qui 
demeurait alors et vivait d Paise en la pa- 
roisse de Ste. Elizabeth, comt^ de Joliette, sur 
une propri^t^ & elle appartenant, avec sa 
soeur Ein^lie Dambourg^s, T autre d^fende- 
resse, et dans le voisinage de plusieurs autres 
membres de sa famille par elles bien affec- 
tionn^s, et que malgr^ le derangement, les 
inconv^niens et les d^sagr^mens tout natu- 
rels de ce d^placement, la dite Dame Agathe 
Dambourg^s voulut bien se rendre a cette in- 
vitation des dits Sr. et Dame Boucher, chez 
lesquels, lors du d^cds de cette demidre, elle 
demeurait depuis environ huit mois, faisant 
nuit et jour aiiprds de celle-ci (ce qu'elle fit 
plus tard aupres de son dit mari) c^estrd-d're, 
faisant Foffice de la garde-malade la plus 
humble, lui donnant tous les soins les plus 
d^licats jusqu'isiux plus grossiers, et accomplis- 
sant les fonctions les plus p^nibles, le tout 
avec une attention, un zdle et un d^vouement 
constant, dont les enfans et petite enfans des 
dits Sr. et Dme. Boucher n'ont jamais 6t6 
capables, et n'ont jamais donnd d'exemple*" 

As to the charge of exerting undue influ- 
ence, the defendants {urther alleged : '^ que le 
dit testateur, lorsqu'il a ainsi fait et ^crit le 
dit testament ou codicile olographe, en faveur 
des d^fenderesses, ^tait parfaitement sain 
d'esprity m^moire, jujgement et entendement, 
qu'il Ta fkitavec pleine connaissance de cause, 
qu'il est Texpression libre, vrai et sincere 
de ses volont^s et intentions, qu'il Ta fait de 
son propre mouvement, sans aucune obses- 
sion ni suggestion, par et de la part des d^fen- 
deresses." 

Monk, J. This is an action brought by the 
heirs to the succession of the late Col. Bou- 
cher, of Maskinong^, against the defendants, 
Madame Cloutier and Madame Brunelle,. two 
nieces of the testator, for the purpose of hav- 
ing a certain olograph codicil set aside. This 
codicil was found among the papers of the de- 
ceased, and the present action was immediately 
instituted by the children to have it declared 
that the codicil was forged, or that Col.Boucher 
was non composmentiSj hot in a state of mind 
to make a will, or that these ladies had^exer- 
cised undue influence over him ] that they had 
robbed him of i63,000; and lastly, that the 



July, 1867.] 



THE CANADA LAW JOURNAL. 



11 



testator had no right to will a share of the 
property to his neices. 

The evidence in the case is of extraordi- 
nary length. It ap^ars that Col. Boucher 
was a man of considerable fortune. His wife 
becoming ill, one of the defendants Ma- 
dame Cloutier (Agathe Dambourgds) was 
sent for. This was about March, 1857. Mad. 
Cloutier came and found Madame Boucher 
very ill. Col. Boucher invited her to remain 
with them, and she continued to live with 
them till Mad. Boucher's death seven months 
afterwards. Col. Boucher was very much 
distressed by his wife's death. They were an 
aged couple, (Col. Boucher being at this time 
about eighty,) and were living alone. At the 
request of Col. Boucher, Mad. Cloutier con- 
tinued to remain there for a period of four 
years, during which time she and the other 
defendant, Mad. Brunelle, (Em61ie t)ambour- 
ges) another niece who arrived subsequentiy, 
about twenty months before his death, faith- 
fully nursed' and attended to their uncle. 
About April or May, 1860, Col. Boucher was 
struck by paralysis, and fell into a very feeble 
state, and finally died on the 29th of August, 
1861. The two ladies left the house before the 
funeral ; the heirs assembled, and in looking 
over the' papers found the codicil in question, 
under which the nieces were to have a child's 
portion of the estate. The children then 
brought the present action. 

The declaration is drawn with very great 
care (said to have been prepared by one of 
the most eminent men in the country), and 
^he pleadings are clearly and carefully framed. 
It becomes the duty of the court to decide, in 
the first place, whether the codicil is a forgery 
or not. Mad. Boucher, on the 14th of May, 
1857, made her will before Guillet and col- 
league, notaries, by which, after leaving 
several legacies, she gave all the residue of 
her property to her husband. In that will it 
was declared that he was to have entire dis' 
position of her property, the deceased, how* 
ever, expressing a wish that he should will 
part of it in a particular way. Mad. Cloutier, 
who came there about the time this will was 
made, was not mentioned in it. Mad. Boucher 
died on the 15th September, 1857, without 
having altered her will. Mr. Boucher made 



his will on the 25th of January, 1858, before 
notaries, by which he disposed of this proper- 
ty in difierent ways, but neither of the nieces 
was mentioned in the will, though they had 
been there some time. On the 2d of March, 
1860, Col. Boucher made a codicil before no- 
taries, in which he gave Mad. Cloutier £30 a 
year for her good services to his wife and him- 
self. He seems to have had a strange fancy 
for making codicils, for, on the 24th of Octo- 
ber, he made another notarial codicil, by 
which some changes were made in the orig- 
inal will, but no change was made in the first 
codicil. On the 12th of January, 1861, he 
made an olograph codicil, written with all the 
requirements of the law, and signed by him- 
self at Maskinong^. By this codicil the nieces 
were to have une part d^enf ants " dan0 tout ce 
qui me reste d diviser apres ma mort, excq>t6 
la seigneurie, en considiraiion des bons soins 
qu^elUs m^ontprodifftUs pendant ma nialadie.^^ 
It is for the Court to determine first, whether 
this codicil is a forgery or not. In the first 
place there is a strong improbability that it is 
forged, and the evidence also disproves the 
charge. These ladies were the relatives of the 
deceased, and the evidence shows them to be 
of the very highest respectability, with the 
good education and moral training customary 
in families of their standing. They are more- 
over advanced in life. It is almost impossi- 
ble to suppose that they committed the for- 
gery themselves. Did they emplpy any one 
to do it? The only persons with sufiicient in- 
telligence to do it were Mr. Blois, and Mr. 
Bourdages. Now Mr. Blois was an intimate ^ 
friend of the deceased, but it is indisputable 
that his character is very high, and the court 
must exclude the idea that he perpetrated a 
forgery. Mr. Bourdages was a student of law, 
and seems to have been on very friendly 
terms with Col. Boucher, who was in the 
habit of conferring pecuniary favors upon 
him 5 but he had no interest in the forgery. 
rather the contrary. It appears that Mr. 
Bourdages furnished the formula for the co" 
dicil, taken from Guyot, the deceased having 
requested him to obtain a form, but there is 
nothing to show that Mr. Bourdages had any- 
thing further to do with the codicil. I must 
therefore come to the conclusion that no one 



12 



THE CANADA LAW JOURNAL. 



[July, 1867. 



can reasonably be supposed to have parti- 
cipated in the alleged forgery. 

But is the codicil a forgery at all, or is it 
the work of Col. Boucher himself? The 
document consists of eight lines, and places 
^e two nieces on the same footing as the de- 
ceased's children. It is objected that the do- 
cument is not in his writing, and that it is full 
of orthographical mistakes. I have exa- 
mined all the writings in the record in Col- 
Boucher's hand. There are a number of 
receipts, and a comparison of the signatures 
on these with the codicil shows that the writ 
ing is marvellously alike. One of the most 
difficult hands to imitate is the peculiar trem- 
bling observable in the writing of a man 
laboring under paralysis, as Col. Boucher' 
was at this time, but the signature to the 
codicil is precisely the same as the others. 
Taking all this evidence, I come to the con- 
clusion that the codicil was written by Col. 
Boucher himself, and that there has been no 
forgery at all. 

The next question is, whether he was in a 
state of mind to make a will. It is well 
know that the peculiar disease of paralysis 
has a much greater effect upon the body than 
the mind. There is evidence in this instance 
of absence of will, but the Court has no hesi- 
tation in saying that the testator's mind was 
not seriously affected. It must be assumed 
that where a man has not been interdicted he 
was sane. Here a conseil had not even been 
named. In the absence of interdiction the Court 
would require evidence of what the books 
term hallucination, before it could set aside 
the codicil. Now, there is no evidence in this 
case of hallucination. Col. Boucher knew 
every one about him ; he knew precisely his 
relations to these ladies (his nieces), and he 
continued to manage his domestic affairs, to 
sign receipts, &c., alter the date of the codicil. 
More than this, he executed a notarial docu- 
ment on the 30th of April, 1861, two months 
after the date of the olograph codicil. The 
Court would stultify itself by declaring a man 
cUchu from making a will, who continued to 
manage his own affairs, merely because he 
was weak and suffering from paralysis. He 
was a man who had accumulated a large for- 
tune by industry, and attention to minute 



particulars. He was fretful at this time, and 
anxious about his money, and would walk 
about the house with his great coat, and his 
stick, and his keys, but there is evidence in 
the record of his being a man of noble cha- 
racter. It appears that he called these ladies 
voleuseSf and some weight has been attached 
to this circumstance, but this is a term easily 
understood in the case of a fretful, impatient 
man, and it is shown that he sometimes called 
other people by the same name. But there 
is a wide difference between mere fretfulness, 
and incapacity to make a will. There are 
other facts of a still more conclusive charac- 
ter. About three months after the date of the 
codicil, it was thought advisable to have Col. 
Boucher interdicted. He was now eighty- 
three years of age, and the disease was mak- 
ing rapid progress. Judge D. Mondelet was 
sent for, but it appears that that judge did 
not consider him even then in a state to be 
interdicted. On the contrary, it was judged 
sufficient to name a conaeily and Mr. Lacombe, 
his son-in-law, was appointed on the 24th of 
May, 1861. This, taken in conjunction with 
other circumstances, shows that he was quite 
competent to make the codicil three months 
previously. The evidence of some members 
of the family has to be taken with a great 
deal of caution, for there is evidently a great 
deal of feeling in the case. But even giving 
full effect to all that evidence, I am bound to 
^ay that there is sufficient in the record to 
show that Col. Boucher was compos mentisy 
and in a fit state to make a will. 

It being then established that the codicil is 
genuine, and validly made, the third point is 
whether these ladies exercised any undue in- 
fluence over the testator's mind in obtaining 
it. They were the nieces of the testator, and 
friendly relations had always been kept up 
between the families. Col. Boucher, it seems, 
was under obligations to their father. Certain 
correspondence has been produced which 
shows that Col. Boucher, on one occasion, 
when Madame Cloutier was at St. Jacques, 
(whither she had gone to wait on her nephew, 
Dr. Jacques, then sick) wrote to her more as 
he would write to a daughter thah to a niece. 
For four years these ladies acted as garde- 
malade to Col. Boucher and his wife. It is 



July, 18B7.] 



THE CANADA LAW JOURNAL. 



13 



impossible to suppose that Mad. Lacombe, liib 
daughter, and the other daughters, would 
have allowed them to act thus, unless they 
were satisfied he could not be in better hands. 
There is nothing unreasonable in the dispo- 
sitions of the codicil under the circumstances. 
Hheformule for the codicil was obtained in 
this way. Mr. Bourdages, the law student 
mentioned above, was at the house when the 
deceased asked him to procure this formule. 
When he was leaving the house, one of the 
nieces reminded him of this, and told him 
not to forget it. This showed that they knew 
that Col. Boucher wanted to make a change 
in his will, and that they wished him to have a 
formule. The codicil, in the shape of &projeif 
was taken toGuillet, the testator's notary, by 
Mad. Cloutier, and he said it was all right. 
The notarv is not certain whether it was com- 
pleted at this*time. There are some other 
circumstances, not necessary to be detailed, 
which go to establish that these ladies knew 
what was going on, though it does not appear 
that they knew the exact nature of the change. 
But as a matter of common sense and of law, it 
is not sufficient to justify the charge of exercis- 
ing undue influence, that they knew what was 
going on. The Court must be very careful in 
branding legatees with fraud, and with exer- 
Kjising undue influence, and especially is care 
to be taken in a case like this. These old 
ladies, themselves staggering into the grave, 
were most devoted in their attention to the de- 
ceased, they waited upon him like nurses, 
and performed offices about his person which 
his children would not do, and from which even 
servants recoiled. Was this all hypocrisy? 
Was there no affection, no religion in all 
this? There is nothing unreasonable in the 
legacy as a reward for all the devotion dis- 
played by these old ladies. There is another 
circumstance worthy of notice. The codicil 
was found among the testator's papers after 
his death. The nieces left the house the same 
night that he died. Now, if they had procured 
the making of a codicil which gave them 
such an important share in the estate, would 
they not have been likely to remain ? They 
left because they were treated with insult by 
the children, but would they have had such a 
scrupulous sense of what was due to their 



sense of self respect, if they were persons ca- 
pable of the conduct with which they are 
charged ? The Court has come to the conclu- 
sien that the allegations of the plaintiffs are 
utterly unfounded. The accusation of forgery 
is infamous and discreditable to the parties 
who made it. 

The fourth charge is that these ladies robbe(\ 
and plundered the deceased to the extent of 
£3000. This is a grave charge, but there is 
not an iota of proof that they ever took one 
copper. There are two circumstances that 
show how slender a foundation exists for the 
charges. Two candlesticks were missing, and 
it was said that these ladies had taken them. 
It turns out, however, that Mr. Boucher, son 
of deceased, had borrowed them. Then it 
was said there was a deficiency of $60 in their 
accounts. But it appears that the same 
son had received $50, and Mad. Cloutier paid 
Judge Mondelet's travelling expenses, $12, so 
that the balance is really in their favor. Ab 
uno disce omnes. This accusation of robbery 
is totally and absolutely unfounded. 

The last point is whether the testator had 
a right to will or not. The Court has nothing 
to do with that point in this case. It has to 
declare the codicil genuine, that the testator 
was compos mentis ) that there was no undue 
influence exercised ) and that the defendants 
have not been guilty of robbery of money or 
goods. The action, therefore, must be dis- 
missed with costs. 

The following is the judgment recorded : 

Gonsid^rant que les dits demandears n'ont 
point fait preuve des allegata de leur action, ou 
demande en cette cause ; consid^rant que les 
d^fenderesses ont l^galement fait preuve de 
tous les allegu^s essentiels de leu^ exception 
p^remptoire en droit a la dite action ; vu 1'^- 
crit sous seing priv6 ou le codicile olographe, 
prodait en cette cause, par les demandeurs : 

Consid^rant qu'il r^sulte de la preuve en 
cette cause que le dit testament ou codicile 
olographe, ci-dessus cit6 et rapport^ et portant 
la date du 12 Janvier, 1861, a 6\6 entidrement 
fait, 6crit et sign6 par le dit Francois Xavier 
Boucher, qub la 'signature " Frs. Boucher *' qui 
se tronve au bas du dit testament ou codicile 
olographe, est de T^criture et signature du dit 
Boucher, et que le dit testament ou codicile est 



14 



THE CANADA LAW JOURNAL. 



[July, 1867. 



entidrement de son ^criture ; consid^rant qne 
Ion de la confection, ^critnre et signature da 
dit testament on codicfle olographe par le dit 
Boncher, ce dernier ^tait sain d'esprit, et qn'il 
ayait la capacity de tester avec connaissance de 
canse ; consid^rant en ontre qne en ^gard anx 
liens de patents qni nnissaient les d^fende- 
resses an dit Boucher, en ^gard anx sentiments 
d'aflbctton, d'estime et de hante consideration, 
qni ont subsist^ entre le dit Boncher, son ^ponse 
et les d^fenderesses, eu ^gard enfin, anx bons 
services et soins d'abord rendns, d la dite Dame 
Boncher, jnsqn'd son d^ces par la dite d^fende- 
resse Agatbe Dambonrgds, puis anx bons soins 
etaux serrices difficiles, p^nibles, importans, 
r^ellement prodign^s, avec un d^Touement 
filial, constant et sans bomes, an dit Boucher, 
jusqu'd son dit d^cds par les d^fenderesses, le 
dit testament ou. codicile olographe en leur don- 
nant et Uguaftt la part d'en&nt 7 mentionn^ ne 
comporte rien que de raisonnablo et d'^qaitable 
en leur faveur ; consid^rant que le dit Boucher 
avait le droit de tester et de l^guer, en faveur 
des dites dSfenderesses tel et aiosi qu'il I'a fait, 
par et en vertu de son dit testament ou codicile 
olographe : 

Gonsid^rant que le dit testament ou codicile 
olographe n'est pas le r^sultat de suggestions 
nld^influences indues, mais qu'il est an contraire 
I'expression libre, yraie, et sincere des demidres 
Yolont^s et intentions du dit Boucher, en fa- 
yeur des dites d^fenderesses : 

Consid^rant que les dites d^fenderesses ne se 
sont rendues coupables d'aucun d^tournement 
ni ricflSj mais qu'au contraire durant tout le 
temps qu'elles sont d^meur^es chez le dit Bou- 
cher, leur conduite sous ce rapport, comme sous 
tons les autres, a toujours ^t^ honndte, irr^pro- 
chableet honorable : 

Gonsid^rant enfin qu'il r^sulte de la preure 
en cette cafise que le dit testament ou codicile 
olographe a ^t^ et se troUve pleinement prouy^, 
y^rifie, et jnstifi^,— La Gour maintient la dite 
exception p^remptoire en droit des d^fende- 
resses, declare le susdit testament ou codicile 
olographe dument prouy^, y^rifi^, dument fait, 
^crit et sign^, etc. 

Olivier if jirnutrongj and (hj substitution) 
LafrenayeifJrtnstrongf for the Plaintiffii. 
E. U. Pichij for the Defendant. 



July 9th, 1867. 

CONNOLLY V. WOOLRYCH. 

Marriage — Indian Territory — Domicile, 

A native of Lower Canada went into 
the Indian or Arthabaska territory in the 
service of the North West Company, and 
while there^ took an Indian woman as his 
wife, fiuicording to the usages of the country. 
He lived with this woman as his wife for 28 
years, during which time he travelled about 
from 'poet to post, and finally brought her 
back with him to Lower Canada. Some time 
after his return, he repudiated his Indian 
wife, and married a white. An action being 
brought after the death of himself and the 
Indian, by one of the children by the first 
union, claiming his share of the community, 
accoraing to the law of Lower Canada : — 

Htld^ that the marriage with the Indian 
was a valid marriage, and could not be repu> 
diated. 

2. That inasmuch as he never acquired a 
domicile in the Indian country^ his domicile 
continued to be in Lower Canada, and his 

{)roperty must be divided according to the 
aws of Lower Canada. 

Monk, J. This case is one of the very 
greatest importance, and I have looked into 
the law of France, the law of England, and 
of the United States, to see whether I could 
find any decision in point, but I have not been 
able to find one. In 1803, a young man 
named Connolly, went out to the Arthabaska 
territory, in the employ of the North West 
Company. The plaintiff appears to have 
been under the impression, when he brought 
the action, that he was in the employ of the 
Hudson Bay Company, but the fact is that he 
was employed by the North West Company. 
The plaintiff also seemed to be under the im- 
pression that this territory was within the 
limits of the Hudson Bay Company. The 
Court has been obliged to make a most exten- 
sive investigation, for the purpose of ascer- 
taining the correct position of the territory, 
and the result will be stated subsequently. 
Connolly proceeded to this territory, which is 
600 miles from York Factory, and is isolated 
and remote. It was necessary for him to be 
on good terms with the Indians that lived 
there, and he made a proposal to a powerful 
chief to take his daughter Susanne in mar. 
riage. The declaration states that he mar- 
I ried her according to the usages of the coun- 



July, 1867.] 



THE CANADA LAW JOURNAL. 



15 



try, and recognized her for twenty-eight years 
as his wife. He visited with her almost all 
the trading posts in that part of the country. 
They had nine or ten children, and both 
among the natives and the whites she was 
acknowledged as his wife. In 1831, nearly 
twenty-eight years after the marriage, he came 
to Canada with this woman and his family, 
and at St. Scholastique and other places in- 
troduced her as his wife. She went by the 
name of Mrs. Connolly. In 1832, however, 
he repudiated her, and married the lady who 
is made the defendant in this action, and 
lived with her till 1849, when he died. He 
left a will in favor of his wife, wLo died in 
1865, after making a will in favor of her 
children. The present action is by one of the 
children of Connolly and Susanne, claiming 
that she, Susanne, was the lawful wife of Con- 
nolly, and seeking to recover one-sixth of her 
half of Connolly's property. The defendant 
(the late Mrs. Connolly) met this action by 
denying that Mr, Connolly was ever married 
to Susanne, and setting up the marriage with 
herself in 1832. It is alleged that Susanne 
acquiesced in this marriage. Secondly, that 
the law of England prevailed in the Hudson 
Bay Territory, and therefore even if there was 
a marriage there, such marriage did not es- 
tablish a community of property. 

It will be necessary to go more fully, into 
the facts to render the decision of the Court 
intelligible and satisfactory. It is proved, in 
the first place, that William Connolly went to 
Rat River in 1803, and married this Indian 
woman ; that she went by his name, and that 
their connection lasted, without any violation 
or infidelity on either side, for twenty-eight 
years. To all intents and purposes they lived 
exactly as Christian man and wife, and not 
as a Christian living with a barbarian concu- 
bine. These facts are indisputable. His 
children were baptized, one at Quebec, and 
others after his return to St. Scholastique. 
He wished to have two daughters baptized^ 
and went to a priest named Turcotte. He told 
this priest that Susanne was his lawful wife, 
but, apparently deficient in moral courage, he 
did not wish to have his children baptized as 
Lis lawful children. They were baptized sim- 
ply as the children of Connolly and Susinne. I 



The words legitimate marriage were omitted. 
Susanne received the news of her repudiation, 
and her husband's subsequent marriage to 
the defendant with true Indian apathy. It is 
proved that she smiled when she heard of it, 
and said, "Mrs. Connolly will have nothing 
but my leavings, and he will regret it." She 
was supported in a Convent by Mr. Connolly, 
and afler his death by Mrs. Connolly, and 
died in 1862. These are the facts. 

The Court has to decide, firstly, whether 
the place where the Indian marriage was en- 
tered into was in the Hudson Bay Company's 
Territory. After reading the Charter, and 
examining carefully the whole history of the 
Company, I have arrived at the conclusion 
it was not within their territory. It was in 
the possession of the Indians, and if the law 
of any civilized country had authority there, 
it was the law of France. Therefore, the 
English law has no application to the present 
case. Connolly, as clerk in the North West 
Company's service, did not take the common 
law of England with him. , It has been laid 
down by Chief Justice Marshall, nine judges 
concurring with him,^ that unless the Supreme 
Legislature of England were by an act to 
abolish the customs of the Indians, no other 
authority could do it ; but the Legislature has 
never interfered with them, and there has 
never been any interference even on the part 
of the executive authority, by proclamation 
or otherwise. Therefore, it must be concluded 
that in'the year 1803, this region was governed 
by its own system of usages and laws. Mr. 
Justice Aylwin and Mr. Justice Johnson 
have been examined as to what law existed 
in this Indian territory in 1803, and their 
answer is, the English common law^ and Mr. 
Hopkins, who was twenty-five years there/ 
says, though the territory is not within the 
limits proper of the Hudson Bay Company, 
that Company exercises jurisdiction over it. 
This is not supported, but rather contradicted 
by the Charter. It is necessary then for the 
Court to look to the Indian usages, and the 
authorities are unanimous that the only form 
of marriage among the Indians is this : that 
the consent of the father is asked, and then 
if the parties consent, they take each other 
for man and wife. Something similar may 



16 



THE CANADA LAW JOURNAL. 



[July, 1867. 



be obsenred in the case of Jacob and the 
daughter of Laban. It is only in modem civi- 
lization that it is necessary to register the 
marri^e. In this Indian territory, there 
were no registers and no priests. It is quite 
preposterous to call this a pagan marriage* 
I see nothing immoral in the fact of man and 
woman in an Indian country, by mutual con- 
sent, choosing each other for man and wife, 
without any, ceremony whatever. It would 
be different if it were only intended to be a 
fugitive connection for the purpose of concu- 
bin^e. But it is said that these Indians 
practise polygamy, and this is a barbarous 
custom. The Court, however, has nothing 
to do with polygamy in this case. But as a 
matter of fact, I think it is proved that poly- 
gamy is only the abuse of marriage. Some 
of the chie& take three or four wives, or as 
many as they can euppoit, but it is proved 
to my satisfaction that polygamy is not a ne- 
cessary accompaniment of marriage. At all 
events, there is the best proof of record, that 
there is no instance of a European taking 
two Indian wives; but, on the contrary, it is 
established that Europeans when they take 
an Indian to wife, restrict themselves to one 
wife. It must next be inquired whether Con- 
nolly married this woman according to the 
usages of the country. Now, he told Judge 
Aylwin positively that he took her to wife ; 
that he wanted to conciliate a powerful chief; 
and, further, he told the priest to whom he 
applied to baptize his children, that he had 
married her according to the usages of the 
country. She continued to live with him for 
twenty-eight years. If Connolly had repu- 
diated this marriage in the North West coun- 
try, he might, perhaps, ,have validly done so, 
though even then the question would arise 
whether a Christian could repudiate a marriage 
under such circumstances. But Providence ap- 
pears to have been watching over this man. He 
brought the woman to a Christian country, and 
not only did he bring her into Canada, but he 
introduced her as his wife, and thus came under 
the operation of our law. Perhaps, even if he 
had gone back, he might have had some diffi- 
culty in repudiating the marriage. But he did 
not go back to the Indian country to repudiate 
her; he repudiated her in the very face of 



the Church which he had invited to baptize 
his children, on the assurance that Susanne 
was his lawful wife. This would not do. So 
fkr I have very little difficulty in stating that 
it is the duty of the Court to recognise this 
Indian marriage, and recognizing it to say that 
to this point the case for the plaintiff is good. 
It is pretended for the defendant that the co- 
habitation went for nothing, because Connolly 
afterwards showed a contrary intention by the 
repudiation, and that Susanne acquiesced in 
this repudiation. I find it difficult to treat 
this allegation of acquieecence as serious. 
Will it be pretended for one moment, that if 
the Indian marriage was valid, any acquies- 
cence on the part of the wife could set it aside? 
Moreover, as a matter of &ct, she never ac- 
quiesced. It is true that the plaintiff, her son, 
solicited favors from Mrs. Connolly, but that 
amounted to nothing. Then, it is said- that 
she had not the status of a wife, and this 
action must therefore fail. But she did enjoy 
the status for twenty-eight years, and she was 
only deprived of it in 1832, by an act of selfish 
cruelty on the part of Mr. Connolly in repu- 
diating her and marrying again. In the next 
place, it is said the certificates of baptism dis- 
close the illegitimacy of the children. But 
as a matter of fact, these certificates do not 
say that the children are illegitimate. Two 
daughters were baptized at St. Scholastique 
as the children of Connolly and Susanne. The 
priest being examined says this was not the 
certificate of illegitimate marriage. The plain- 
tiff, one of the sons, was baptized in Quebea 
in 1832. What was the certificate of his bap- 
tism? It contains these words, ^' Jean dont 
lea parens Ugitimes sont inconnusy^^ and states 
that he was born in Upper Canada. It is 
a strange fact that Connolly, the father, was a 
party to this certificate and signed it. Now 
Connolly knew who the parents were, but he 
did not tell the priest who they were. This 
was the first falsehood in the certificate, and 
he also knew that his son was not born in 
Upper Canada, but in the North West. But 
the fact is that Connolly had no idea of bas- 
tardizing his children, while at the same time 
for some reason he did not wish to put the 
matter exactly as it should have been put. 
But he has gone too far for it to be contended 



July, 1867.] 



THE CANADA LAW JOURNAL. 



ir 



for one moment that the certificate establishes 
illegitimacy. Therefore, the status of ille- 
gitimacy does not exist, and status is en- 
tirely out of the question. Then it is con- 
tended that there was prescription ; but the 
legal marriage in the North West was a per- 
petual bar to prescription. Again, it is said, 
all the children should have joined in the 
action, but why so? Was it not competent 
for any of them to claim his right, and vindi- 
cate his mother's name fVom the stain of 
concubinage ? Lastly, it is said there is no 
community of property by the law of England, 
which prevailed at Bat River, where the mar- 
riage took place. I have already disposed of 
this point, by showing that the law of England 
has no authority in this Indian country. But 
farther, this question is not of much impor- 
tance, because although the matrimonial dom- 
icile was at Rat River, yet Connolly, never re- 
maining long at one point, but wandering 
about from post to post, and always having 
the intention to return, retained his original 
domicile throughout. This was at Lachine, in 
Lower Canada. Therefore the law of Lower 
Canada governs the rights of the children, 
and community of property exists. The 
Court therefore must maintain the action of 
the plaintiff, for one-sixth of the half of the 
property to which his mother, as Connolly's 
widow in community with him, was entitled 
on his death. 

Perkins 4r SiephenSy for the plaintiff. 

Cross & iMim^ for the defendant.* 



MONTHLY NOTES. 

Superior Court. — July 9. 
Miller v. Ferrier. 

Proihonotary* s Certificate — Putting in Bail, 

Monk, J. This was an action brought 
upon a bail bond. A man named Dutton be- 
ing arrested, gave bail to the sheriff. This 
was in November. In February following he 
applied to the Court to put in special bail. 
This application was not strenuously opposed, 
and his honor ordered bail to be put in. Bail 
was put in, but the bail that was put in was 

* His Honor mentioned that owing to the novelty 
and importance of the case, he was preparing a judg- 
ment in writing. 



bail that he should surrender, and not bail to 
the action. Although the plaintiff's i^ttorney . 
got notice that bail was to be put in, as he- 
thought it was bail to the action, he did not 
attend but left the matter to the prothonotary. 
Subsequently, learnmg that \i was bail to sur- 
render that was put in, disregarding this bail, 
and without making a motion to set it aside^ 
he brought an action on the bail bond. The 
defendants pleaded that they got permission 
from the Court to give special bail. The 
plaintiff answered that this was bail to sur> 
render, not bail to the action. It must be re- 
marked that in this particular case, where 
the defendant came into Court and said he 
was foreclosed by law from putting in bail, 
and it was necessary for him to obtain per^ 
mission from the Court to put in bail, if this 
permission had been taken advantage of by 
putting in special bail, the present action 
would have to be dismissed. But there were 
two descriptions of bail, one bail to surrender,, 
and the other special bail to the action. The 
statute was clear that there are two descrip- 
tions of bail. But there was this difficulty 
here: the defendant had set up a special plea, 
saying that although he was in an exceptional 
position, yet he was taken out of that position 
by the permission of the Court, and in accord- 
ance with that he had put in special bail. 
Now, had he proved this ? He had brought 
up the certificate of the prothonotary. Was 
that evidence ? If it was, the action must be 
dismissed, as the certificate set forth that th& 
defendant moved to give special bail; that hi» 
motion was granted, and that on March 3rd,, 
special bail was entered by sureties named.. 
But the Court was of opinion that this was not 
evidence at all. It amounted to nothing. 
The Court should have been put in posses* 
sion of the beet possible evidence, a copy of 
the bail bond, and of the notice, and of the 
motion. The Court had no hesitation in say- 
ing that the plea must be dismissed for want 
of evidence, and judgment must go for the 
plaintiff. 

Cameron v, Cusson. 
A^ountanVs Report 
Monk, J. The rule of Court in this case- 
stated that the accountant was to be swora 



18 



THE CANADA LAW JOURNAL. 



[July, 1867. 



cefore a judge, and the accountant in his re- 
port says he was duly sworn as provided by 
the rule. It was objected that this had not 
been done. The Court was of opinion, how- 
ever, that the report was regular, and must 
be homologated. 

Laliberte es qual, v, Morin. 

Seduction — Damages, 

Monk, J. This was an action brought by 
a young lady for damages against the defen- 
dant who had seduced her. The circum- 
stances were particularly atrocious. The de- 
fendant, aged about 38, was a married man. 
After tSbe death of his wife, and within a year 
thereafter, he induced this young lady to go 
a,nd stay at his mother's, where he lived. 
From the best view he could take of the case. 
His Honor thought it clearly resulted that by 
groat assiduity, by a series of the basest ma- 
noeuvres, by promises of marriage, pretending 
that he only delayed in consequence of the 
year of his widowhood not having expired, 
the defendant succeeded in attaining his end. 
The defendant was the lady's cousin, and he 
availed himself of the relationship to get her 
into his mother's house. The Court would 
award $1000 damages. 



Labocque r. The Mebchaktb' Bank. . 

Deed of Sale — Assessment 

Monk, J. This Was an suction for a certain 
Amount of interest, arising out of the following 
circumstances : The defendants purchased a 
lot of ground at the comer of Notre Dame 
Street and Place d'Armes. At the time they 
purchased this property the street was in pro- 
cess of being widened, and two assessments 
had been made on the property for the pur- 
pose of widening the street. The sale took 
place, and subsequently another tax of about 
$200 was imposed, nearly equivalent to the 
amount sued for. The. Merchants Bank ad- 
mitted they owed the amount of interest sued 
for, but said they had been obliged to pay this 
tax, and that they bought the property free 
And clear of all taxes. Two letters were pro- 
educed, and it must be conceded that these went 
a great way in establishing the plea. On the 
4th of February, 1866, Mr. Atwater, duly au- 



thorized by the Merchants Bank, wrote a 
letter to the plaintiff, and in this letter he 
stated among other things that the directors 
of the Merchants Bank had authorized him 
to accept the plaintifiT's offer of the lot for 
$18,000, adding '<It is understood that the 
Bank is to have the property free and clear. 
You are to receive the award for the part 
taken by the Corporation, less the assessment 
on the lot for the widening of the street, which 
of course the directors expect you to pay. 
Please inform me as soon as convenient of 
your answer.'' To this the plaintiff answered 
in substance on the 11th of February : Jn an- 
swer to your note of the 4th instant, I beg to 
say that we accept your offer of $18,000 for 
the lo<^ which we will deliver ie you on the 
1st of May next, after the widening of Notre 
Dame street, on your allowing us $800 for the 
commutation which we will effect for you." 
Upon the strength of these letters which 
seemed to embody the verbal agreement, the 
defendants had a perfectly clear case. There 
was no difficulty about it Mr. Larocque ac- 
cepted the conditions which were specifically 
stated in the letter. But unfortunately for 
the defendants there was a deed of sale. 
There might hav^ been a great deal of talking 
and writing, but all that was merged into the 
deed of sale before notary. What did the 
Court find in the deed of sale ? Nothing at 
all about the assessment. The presumption 
of the law was that the owner was bound to 
pay the assessment. Now at the time the 
assessment in question was imposed, the Mer- 
chants Bank were the proprietors. Further, 
the assessment was not for widening the street, 
but for some other purpose. In the face of 
the fact that it was not imposed for widening 
the street, and that it was not mentioned in 
the deed of sale^ what was the Court to do? 
Wa§ it to take the letters ? The defendants 
said, if you look at the deed of sale at all, 
you must look at it in connection with the let- 
ters. But the Court did not require the let 
ters to assist it in interpreting the deed of sale. 
There was no allegaiion of fraud or e:ror. 
The Court was bound ta say that the whole 
of the transaction was embodied in the deed, 
and that it might fairly be presumed there 
was some change in the bargain before the 



July, 1867.] 



THE CANADA LAW JOURNAL. 



19 



deed was drawn. Judgment must therefore 
go in favor of the plaintiff. 



Beaudry r. Brouillet dit Bernard. 

MoNS^ i. This was ari action brought by 
a young man against his aunt. It appeared 
that the plaintiff and his brother were brought 
up at their uncle's and were well treated. 
Their uncle and aunt had one daughter who 
married coutirary to their wishieft, and there- 
upon her parents transferred their affections 
to the two nephews; The uncle- died, recom- 
mending hiB ntephews to the care of his wife. 
One of mie nephews remained with his aunt, 
but some misunderstanding having occurred, 
he now brdtighta pretty heavy claim against 
her for wages, and ibr the produce of a certain 
farm. The lady pleaded that she had brought 
this young man up as her own child, and that 
she had more than paid him by her kindness. 
Further, she saidj if that is not enough, I will 
plead prescription, and you can only claim 
for one year. There was some irregularity 
iu the pieas^ but the Court was* not disposed to 
insist on 'strict technicalities in a case like 
this. -Even if the plea of prfescription wAs 
rejected, the Court was not inclined to give 
more than the one year's wages and produce 
admitted. Judgment -accordingly for $180 
and costs. 



MuLLiN t?. Renaud. 

Monk, J. This was an action brought by 
the plaintiff against the defendant for having 
engaged his vessel or barge to go from Mon- 
treal to Cleveland, Ohio. The plaintiff al. 
leged that in consequence of this agreement^ 
which was merely verbal, he left Montreal on 
a certain day, and sailed off towards Cleve- 
landf At Port Colborne he reflised a cargo. 
When he arrived at Cleveland he endeavored 
to find the agent, but there was no cargo for 
him. Finally, he left, and now brought an 
action for a large amount, claiming freight, 
demurrage, &c. At first' the Court was in- 
clined to think thai the action should be dis. 
missed, but upon the whole, and seeing that the 



plaintiff was in eairnest throughout, the Court 
was disposed to say that an agreement of a 
vague character was proved. ' The evidence 
of the captain was'flivorable. But the claim 
of $1,200 could not be allowed. Th^ C6urt 
would give $350 (with costs' of the action 
brought,) which was sufficient to pay the 
plaititiff for going to Cleveland and back. 



■) ' 



DURNFORD t>. FaVREAU. 

Informality in Warrant. 

4 • 

Monk, J. The defendant had been con* 
victed of selling liquor without license. In 
the absence of Mr. Coursol, Mr. Brehaut had 
presided. The usual form of words in the 
summons requiring the defendant to be and 
appear before C. J. Coursol, Esq., and stating 
under what authority, had been struck out, 
and the words Mr. "Brehaut, P.M." substi- 
tuted. Now what was " P. M." for? Police 
Magistrate, or Pay Master, or Postmaster, or 
fifty other things. Mr. Coursol took all pre. 
caution to state his authority, but Mr. Bre- 
hault apparently did not think it necessaty. 
The Court was of opinion that this summons 
did not give him authority. ' The first plea of 
the defendant was a plea to the jurisdiction ,• 
then he pleaded to the merits. The Court 
was of opinion that this plea to the jurisdic- 
tion should have been maintained, and that 
the plea to the merits under the ciroumstancea 
was not" a waiver of the plea to the jurisdic- 
tion. Therefore the judgment of the Court 
below must be reversed, and the conviction 
quashed. 

DuRNPORD V. St. Marie. 

Monk, J. The only difference between this 
case and the last, was that the defendant 
made a motion, instead of pleading to the ju- 
risdiction. The Court properly overruled this 
motion, and on the very day he made the 
motion, he pleaded to the merits. The Court 
was further of opinion that in this case the 
plea to the merits was a waiver of objection 
to the jurisdiction. The distinction made was 
that in the first case there was a plea, while 
in the other there was only a motion. 



20 



THE CANADA LAW JOURNAL. 



[July, 1867. 



DURKFORD V. CyPIOT. 

Monk, J. In this case the defendant was 
convicted of selling liquor without license. 
There was a plea of autrefois acquit, and 
then there was the general issue. Subse- 
quently the defendant withdrew the plea of 
autrefois acquit, and there being some diffi- 
culty about the identity of the man, the case 
was dismissed in the Court below. The Re- 
venue Inspector now brought the case up be- 
fore this Court, contending that the plea of 
autrefois acquit was an admission of the 
identity of the person. The Court was left to 
deal with rather doubtful evidence, but his 
honor was inclined to think that the identity 
of the man was sufficiently established. The 
judgment must therefore be reversed, and the 
•defendant condemned to pay a fine of $50, or 
three months imprisonment. 



RECENT ENGLISH DECISIONS. 

Ihnbezzlement — Clerk or Servant. — A person 
who is employed to get orders for goods, and 
to receive payment for them, but who is at li- 
berty to get the orders and receive the money 
where and when he thinks proper, being paid 
by a commission on the goods sold, is not a 
clerk or servant within the meaning of the 24 
and 25 Vict. c. 96, s. 68. Regina v. Bowers, 
Law Rep. 1 C.C. 41. 

Larcemf — Indictment — The prisoner was 
sent by his fellow-workmen to their common 
employer, to get the wages due to all of them. 
He received the money in a lump sum, wrap- 
ped up in paper, with the names of the work- 
men and the sum due to each written inside : 
— Held, that he received the money as the 
agent of his fellow-workmen, and not as the 
servant of the employer, and that, in an indictu 
ment against him for stealing it, the money 
was wrongly described as the property of the 
employer. Regina v. Barnes, Law Rep. 1 C 
C. 45. 

[This case was tried by the Recorder of Bol- 
ton, and the property was originally laid in the 
fellow-workmen. The counsel for the prisoner 
objected that the indictment could not be sus- 
tained, because the money was the property of 
the employers. The indictment was then 



amended by order of the Recorder, and it was 
alleged that the money was the property of the 
employers. The question being reserved whe- 
ther the evidence sustained the indictment, the 
Court quashed the conviction on the amended 
record, holding that the money was the money 
of the workmen as soon as the prisoner, their 
agent, received it. The indictment, as it origi- 
nally stood, would have been sustained.] 

Mistake in date of Will — Parol evidence is 
admissible to prove that a will was executed 
on a date other than that which appears upon 
the face of it. — ^Two wills were propounded, 
one bearing date on the 27th of February, 
1855, and the other on the 11th of December, 
1858. There was no ambiguity on the face of 
either of them, and each of them contained a 
general clause of revocation. Parol evidence 
was admitted to prove that the will bearing 
date on the 27th of February, 1855, was in 
fact executed on the 27th of February, 1865, 
and on that evidence the Court pronounced for 
the will of 1865, and against the will of 1858. 
— Sir J. P. Wilde remarked: "I intended in 
Guardhouse v. Blackburn, (Vol. 2, p. 180), to 
point out that there is a distinction between 
an inquiry into the meaning of a written docu- 
ment,— will, contract, or deed,— and an inquiry 
into the existence of such a document.' ' Reffell 
V. Reffell, Law Rep. 1 P. & D. 139. 

Pleading — Adultery and Cruelty, — In an- 
swer to a petition by a wife for dissolution of 
marriage, charging adultery and cruelty, the 
respondent denied both those charges, and 
further alleged that the petitioner had habi- 
tually treated him with insolence and neglect, 
and frequently absented herself from home, 
and refused to inform him where she had been, 
and constantly set his orders and wishes at 
defiance ; and that she had withdrawn herself 
from cohabitation for two years without rea- 
sonable cause. The Court refused to order 
those allegations to be struck out, being of 
opinion that the respondent was entitled t6 
give evidence of them, for the purpose of show- 
ing that his misconduct, if any, had been 
caused by that of the respondent. Hughes v. 
Hughes, Law Rep. 1 P. & D. 219. 

Custody of Children. — The Court of Probate 
and Divorce has jurisdiction by its order to 



July, 1867.] 



THE CANADA LAW JOURNAL. 



21 



regulate the custody of children, until they 
attain the age of 16 years. Mallinaon v. Mai- 
linson, Law Bep. 1 P. & D. 221. 

Forgery —Stifling a prosecution- Undue pres- 
sure. — ^A son carried to bankers of whom he, 
as well as his &ther, was a customer, certain 
promissory notes with his father's name upon 
them as indorser. These endorsements were 
forgeries. On one occasion the father's atten- 
tion was called to the &ct, that a promissory 
note of his son with his (the father's) name 
on it) was lying at the bankers dishonored. 
He seemed to have communicated the fact to 
the son, who immediately redeemed it ; but 
there was no direct evidence to show whether 
the father did or did not really understand the 
nature of the transaction. The fact of the for- 
gery was afterwards discovered ; the son did not 
deny it ; the bankers insisted ( though with- 
out any direct threat of a prosecution) on a 
settlement, to which the father was to be 
a party ; he consent€ki, and executed an agree- 
ment to make an equitable mortgage of his 
property. The notes with the forged endorse- 
ments, were then delivered uj) to him. — Hetd, 
that the agreement was invalid. — A father 
appealed to, under such circumstances, to 
take upon himself a civil liability, with the 
knowledge that, unless he does so, his son 
will be exposed to a criminal prosecution, 
with a moral certainty of a conviction, even 
though that is not put forward by any party 
as the motive for the agreement, is not a free 
and voluntary agent, and the agreement he 
makes under such circumstances is not en- 
forceable in equity. Williams v. Bayleyj 

Law Rep. 1 H. L. 200. 

• 

Practice^Jurisdiction. — Where proceedings 
are taken out of the ordinary cursus curice with 
the assent of the parties, all subsequent in- 
terlocutors in the course adopted, though pro- 
nounced adversely, are in the nature of awards, 
and not subject to appeal. White v. The 
Diike ofBuccleuchy Law Rep. 1 H. L. Sc. 70. 

Bill of Lading, — A BiU of lading for the 
delivery of goods to order and assigns, is a 
negotiable instrument, which by indorsement 
and delivery passes the property in the goods 
to the indorsee, subject only to the right of an 
unpaid vendor to stop them in transitu. The 



indorsee may deprive the vendor of this right 
by indorsing the Bill of lading for valuable 
consideration, although the goods are not paid 
for ; even if Bills have been giyen for the price 
of them, which are certain to be dishonored^ 
provided the endorsee for value has acted bona 
fide and without notice. Fease v. Gloahec. 
Law Rep. 1 P. C. 219. 

Bill of lading — Negligence, — Under a char, 
ter-party the shippers put a cargo, consisting 
of casks of oil, wool, and rags, on board the 
chartered vessel, and personally superintend- 
ed the stowage of the cargo in the hold of the 
vessel. In the margin of the Bill of lading 
of the casks of oil there was this memorandum, 
^'weight, measurement, and contents un- 
known, and not accountable for leakage.'^ 
The Bill of lading was indorsed in blank by 
the shippers and assigned to B. & Go. In the 
course of the voyage the oil casks became 
heated by the action and contiguity of the 
wool and rags, and a very large portion of 
the oil was lost : — Heldj in a suit against the 
ship for damages occasioned by shipowners' 
negligence : First, that ignorance of the ship- 
owners as to the latent eiTect of heat, in stor- 
ing the casks of oil with wool and rags, did 
not, in the circumstances of the shippers su- 
perintending the stowage, amount to such 
negligence as to make them liable to the hold- 
ers of the Bill of lading for the loss occasion- 
ed by the leakage of the oil ) and, secondly,, 
that the limitation of liability by the memo- 
randum in the Bill of lading, that the ship- 
owners were not to be accountable for leakage, 
was not restricted as to the quantity of leak- 
age, and protected the shipowners, in the ab- 
sence of proof that the leakage was occasioned 
by their negligence. Ohrloff v. Briscallj Law 
Rep. 1 P. C. 231. 

Salvage, — The Judicial Committee is al- 
ways reluctant to review cases of salvage, 
which involve the exercise of the discretion 
of the Judge of the Court below, but, b^ing a 
final Court of appeal, will, if the justice of the 
case requires, increase the amount. The ques- 
tion how far a deviation in a vessel's course^ 
in the performance of salvage services to life 
or property, may be th^ voidance of a Policy 
of Insurance, is not satisfactorily settled. 



22 



THE CANADA LAW JOURNAL. 



[July, 186T. 



though the risk of such may operate on the 
judge's mind in determining the amount to be 
awarded^fqr salvage services. A moiety of the 
value of the vessel and cargo, in a case of the 
salvage of a derelict, was formerly the amount 
Awarded, but the Maritime courts now give only 
such amount as is fit and proper with reference 
to all the circumstances of the case, having re- 
gard especially to the value of the property 
8alved.*-In a case where the vessel was detre- 
lict, and her value, with the cargo on board, 
exceeded £30,000, was salved by two vessels, 
one of which, with her cargo on board, was 
worth £150,000, and the other above £3,000, 
and a tender of £2,000 for salvage services 
had been refused, which sum was awarded 
by the Vice-Adnurality Court : the Judicial 
Committee, looking at the respective values, 
and taking into consideration the additional 
risk to the salvors from having to make a de- 
viation in their course, held that sum insuffi- 
cient) and increased the amountof salvage by 
£1000. Kirbyy^Tficoumersofthe ^^Scindia,^^ 
Law Rep. 1 P. C. 241. 

Salvage of DerelicU'—ln a case where a de- 
relust vessel and cargo of the value of £1,452 
was salved by a steamer, which, with her car- 
go, was of the value of £30,000, the Vice- Ad- 
miralty Court awarded £300 for salvage : — 
Meldf by the Judicial Committee, that, under 
the circumstances, that sum was not sufficient, 
imd the same increased to £450. Papayanni 
V. Hocquard, Law Rep. 1 P.C. 260. 

Sotudiar and CUent—A^ purchaser hascon- 
etructive notice of that which his solicitor, in 
the transaction of the purchase, knows with 
respect to the existence of the rights which 
other persons have in the property .-^-It is a 
moot question (observed Vijse-Chanoellor.Kin- 
dersley) upon what principle this doctrine 
rests. It has been held by some that it rests 
on this :— that the probability is so strong that 
the solicitor would tell his client what he 
knows himself, that it amounts to an irresisti- 
ble presumption that he did tell him ; and so 
you must presume actual knowledge on the 
part of the client. I confess my own impres- 
sion is, that the principle on which the doc- 
trine rests is this : that my solicitor is alter 
ego; he is myself} I stand in precisely the 



same position as he does in the transaction, 
and therefore his knowledge is my knowledge : 
and it would be a monstrous injustice that I 
should have the advantage of what he. knows 
without the disadvantage. But whatever be 
the principle upon which the doctrine rests, 
the doctrine itself is unquestionable. Boursot 
V. Saoagef Law Rep. 2 Eq. 142. 

Mines, — A lease of land (without mentioning 
mines) will entitle the lessee to work open but 
not unopened mines. If there be. open mines, 
a lease of land with the mines therein, will 
not extend to unopened mines ; but if there be 
no open mines, a lease of land together with 
all mines therein, will enable the lessee to, open 
new mines. Clegg v. Rowland, Law Rep. 2 
Eq. 160. 

Married Woman. — Property settled to the 
separate use of a married woman for life with 
a power to appoint the reversion by deed or 
will, which she exercises by will, is not liable 
after her death to the payment of her debts. 
Shattock V. Shatiockf Law Rep. 2 Eq. 182. 

Company — Misr^efenkLUon^-^A. company 
was formed for mining purposes ; the prospec- 
tus referred to the memorandum and articles, 
and described in &vorable term0 a mine for 
the purchase of which a contract ha4 been 
entered into. This mine was afterwards fpund 
to be worthless, and the directors re9ciiided 
the contract, and agreed to purchase .uiother: 
— Heldf that a shareholder who had subserib- 
ed on the faith of ih^ prospectus was. entitled 
to an injunction agiunst an action for .calls, 
although the directors had been themselves 
deceived, and had bioen gnilty pf ,nQ \^lful 
fraud. Smith v. Reese River Company^ Law 
Rep. 2 Eq. 264. 

Will — Framd by a Married Woman, — ^The 
income of property was given by a testator to 
a woman in the character of, and whom he 
described as his wife, but who^ at the time of 
th& marriage ceremony with him and at his 
deatl;^, had a hlisband living :-7-.^6M, in 
respect of the fraud committed by her, that 
the bequest was void. — The testator bequeath- 
ed the residue of his property to his '' step- 
daughter," the daughter of his supposed wife : 
— Hddy that the bequest was valid. Wilkin- 
son V. Joughin, Law Rep. 2 Eq. 319. 



July, 1867.] 



THE CANADA LAW JOURNAL. 



2$ 



WUl — " Survived — The words " survive, ' ' 
and •' survivor," import that the person who 
is to survive must be living at the time of the 
event which he is to survive. Gee v. Idddell, 
Law Bep. 2 Eq. 341. 

Fraud — MisrepresentatUm — Company, — A 
contract to take shares in a company cannot 
be set aside because it was founded on a pro- 
spectus which contains exaggerated views of 
the advantages of the company, but does not 
contain any material mis-statement of fac(. 
Where, therefore, a prospectus stated that a 
certain invention which it was the object of 
the company to work had been tested, and 
according to the experiments the material 
could be produced at a specified cost^ but that 
it was intended to test the invention further, 
and the invention turned out worthless, and 
it appearing that there had been some i^ei- 
\Tig:-^Hddy that this was not such a misre- 
presentation as would enable a purchaser of 
shares to set aside the contract. Denton v. 
Macneil, Law Bep. 2 Eq. 352. 



THE U. S. JUDICIABY. 

iFrom the American Law Register,} 

The rapid deterioration of public morals 
since the late rebellion began is one of the 
very sad offsets to the benefits which are be- 
lieved by many to have resulted from the 
events to which it led. All things seem to 
have concurred, during its brief but exciting 
history, to demoralize official character, busi- 
ness tone, and even social relations. The 
most ardent admirer of the political result? 
will not deny that the community has been 
lamentably depraved. The standard of public 
and private integrity is many degrees lower 
than it was. Money has been so abundant, 
speculation has run so high, reckless wealth, 
and ruin from fraud and folly, have changed 
so many positions and unsettled so many 
lives, that an unnatural stimulus has been 
given to evil agencies. The law seems to be 
less potent and omnipresent. Grime and vio- 
lence run riot. And those whose mission is 
reform, seem to have, day by day, less heart 
for their work. Years must elapse before the 
current of vice can be made to set backward, 



even under the most favorable influences. 
Shall we have such influences ? Is our gov- 
ernment equal to the emergency? Is it 
capable of assuming that new vigor and firm- 
ness which are necessary to bring us back 
even to where we were seven years ago ? 

The prospect is rather hopeless. This gov- 
ernment, to which the pure and earnest citi- 
zen is looking for reform, now that it has 
escaped from its recent danger, is sliding 
more and more into the hands of the danger- 
ous classes. Men to whom human life and 
the laws of property are nothing, manipulate 
primai7 meetings and set up candidates for 
office. Gamblers, lottery men, and liquor 
dealers are active in political campaigns, and 
are becoming so formidable in their unions 
that politicians truckle to them more than 
ever, and submit to the pledges they exact. 
Bevolutionary organizations have powers 
which no association for good can acquire. 
All the elements of evil seem to unite, as if 
they had a common end and a common inter- 
est, and their union is against good morals 
and against good government. ' 

As the drowning man clings to the plank, 
so we have looked to the judiciary in all the 
alarming phases of our history. It has been 
less contaminated than any other department 
of our government. By influences for which 
every good citizen should be thankful, though 
he cannot understand them, the bench has 
been in a large measure preserved from the 
fate of other departments. With some ex- 
ceptions it still remains the balance-wheel of 
the system, our safety among the corruptions 
which have invaded other branches of the 
government. 

The object we have in view in these pages 
is to endeavor to show briefly the peculiar 
causes which have so far tended to save the 
judiciary, and continue it in comparative 
purity, and the ruin which must follow if, in 
choosing our judges, we abandon the instincts 
which have heretofore guided us, descend to 
the same sphere in which we battle for candi- 
dates for other offices, and permit ourselves 
to be governed by the same system which 
governs us in their elections. 

The ordinary division of the departments 
of government into the le^slative, the execu- 



24 



THE CANADA LAW JOQRNAL. 



[July, 186 Y. 



tive, and the judicial, is one so long estab- 
lished and so generallj admitted that we 
receive it implicitly, with but little reflection. 
According to common conception neither in- 
terferes with or invades the other, but, in 
practice as well as theory, they are distinct. 

A very slight experience of the actual work- 
ings of the judiciary will show how mistaken 
this view is. Its powers invade both of the 
other departments. Though the judge does 
not make laws or execute them in the ab- 
stract or the general, he does so in individual 
cases. He decides without precedent that A. 
owes B. money, and sends the sheriff to exe- 
cute his judgment. He decrees that a child 
must be taken from a parent, — that a citizen 
«hall be deprived of his liberty, — that some 
street may invade my grounds. He sV)ps 
the construction of a public work; he sets 
aside an election; he decides the title to a 
corporate office; he strikes dead an Act of 
Assembly; and, when called upon for his 
reason, he says : ^' I have found no precedent 
or ansJogous case, and I must, therefore, de- 
clare that to have been always the law, which 
in my opinion ought now to be the law^ * ' How 
a bad man would use such a license, it is un- 
necessary to explain. 

The doctrine that there is existing law for 
every possible state of facts, that every judge 
is able to find this law, and that in announ- 
cing it he only declares or applies it, as distin- 
guished from making it, is a very beautiful the- 
ory, and falls in harmoniously with the estab- 
lished views of government to which we have 
just referred. But in practice and in sub- 
stance it is wholly illusory. It may restrain 
A good judge, and coerce him to explore more 
conscientiously the sources of customary law, 
in the hope that there are precedents or ana- 
logies to guide him. He may hunt, with the 
patience of an enthusiast, for the smallest 
rivulets from the fountain of justice, but he 
may never find them, and when he does, his 
very excellence of character may lead him to 
4oubt them* It is only when the waters flow 
in a steady and certain current that he feels 
constrained to be carried along against his 
judgment and his sense of right. Instructed 
that he is not to make, but only to find the 
law, he may, with his books around him, be 



put to a somewhat difl^ent kind of mental 
process, and reach a different result from that 
which he would reach if he were freed from the 
control of such a principle. But, in the end, it 
amounts to the same thing ; whi^t the judge 
would have decided if he had been a despot, 
he decides, believing that he has subordinated 
his judgment to the received theory of his 
government. 

This result arises, most frequently, when 
questions connected with the organization and 
construction of public bodies, titles to office, 
the regularity of elections, the constitution- 
ality of statutes, and other matters having 
relation to local governments, or of a public 
or qwui public character are presented. The 
law on these subjects is less settled, and the 
judge is left without precedent or analogy 
more frequently than when he is considering 
such a point, as one arising between landlord 
and tenant, or the parties to a note. And 
this is the very field in which political biasses 
are most exercised, and passions and antag- 
onisms have most influence. It has been a 
very melancholy experience to the quiet and 
unexcited watchers of events, to find, in how 
many cases, judges, whose decisions in mat- 
ters of every-day business, are those of justice, 
with bandaged eyes, and even scales, when 
questions of public concern arose, have de* 
cided, again and again, sometimes vnth tem- 
per, each judge taking the side of the party 
which elected him. 

(^To be coneludtd in n$xt number,) 



The House of Commons contains 128 
memb^s of the legal profession : 95 English 
barristers; 18 Irish ktfurristers; 6 Scotch ad- 
vocates, aud 9 attorneys. There are 5 ser- 
jeants-at-law, and 30 Queen's Counsel. 



Irish Law Appointments .-^By the substi- 
tution of Mr. Morris for Judge Christian, 
in the Court of Common Pleas, the present 
Tory Government has constituted a tribunal 
consisting entirely of Roman Catholics. The 
Times remarks that this is an unprecedented 
event. 



j 



August, 1867.] 



THE CANADA LAW JOURNAL. 



25 



Mt (SAttsdin fnw ^tntnnl 



VoL.m. AUGUST, 1867. 



No. 2. 



REPORT OF THE GENERAL COUNCIL 
OF THE BAR. 

The official report of the General Council 
of the Bar of Lower Canada, recently pub- 
lished, contains some particulars of interest. 
The report was submitted by Mr. G. Doutrb, 
the Secretary-Treasurer, at a meeting held at 
Quebec on the 28th of May. Some of the lead- 
ing points noticed are as follows : The Act re- 
specting the Bar which came into force on the 
15th of August, 1866, has already produced 
results beneficial to the profession. After the 
Act was passed, the General Council and 
Councils of Sections adopted by-laws, which 
were printed under the direction of the Secre- 
tary-Treasurer, Mr. DouTRE, and distributed 
among the members of the profession. 

The next thing was to prepare the iablecm 
gifUral of advocates required by the new law. 
The Secretary-Treasurer was unable to obtain 
possession of the registers, and on going to 
Quebec in quest of them, was informed by the 
ex-Secretary that all the archives of the Bar 
up to 1864 had been destroyed by fire. The 
Grovemment, however, was able to furnish a 
list of commissions granted from 1765 to 
1849, and the various sections supplied the 
lists of admissions subsequent to 1849. A 
notice was issued requiring advocates whose 
diplomas had not been enregistered, to trans- 
mit them for enregietration forthwith. In 
reply to this notice 131 diplomas were received 
by the Secretary-Treasurer, but of course in 
consequence of the destruction of the regis- 
ters, there was no means of ascertaining 
whether these 131 were all that had not been 
enregistered. The ex-Secretary, it appears, did 
not even put the General Council in posses- 
sion of the register from 1864. Another ob- 
stacle that impeded the making of an accu- 
rate list was the difficulty of ascertaining what 
members of the profession had died, removed 
from the province, or ceased to practice. 
Under these circumstances, the list naturally 
contdns the names of many who have either 



left the country, or have entered upon other 
pursuits, and it is requested that gentlemen 
examining the list will apprize the Secretary- 
Treasurer of such changes. 

The Report proceeds to give a table of the 
number of admissions each year from the ces- 
sion of Canada to the present day. The list is 
as follows:— before 1765, 10; inl766,4; 1767, 
} 1768, 1 J 1771, 1 J 1784, 1 ; 1786, 1 j 1786, 1 ; 
787, 2; 1788, 1 j 1789, 3; 1790, 1 j 1791, I ; 
792, 1 ; 1794, 3 j 1796, 1 ; 1796, 3 j 1797, 3; 
798, 2 J 1799, 4j 1800, 3; 1801, 6j 1802, 1 j 
803, 6 J 1804, 4; 1805, 2 ; 1806, 2 j 1807, 4j 
808, 2 ; 1809, 3 j 1810, 9 j 1811, 8 ; 1812, 7 ; 
813, 3 J 1814, 5; 1816, 6 ; 1817, 7 ; 1818, 6; 
819,8; 1820,6; 1821,7; 1822, 19j 1823, 
9; 1824, 15; 1826, 17; 1826, 12; 1827^ 13; 
; 1829, 15; 1830, 19; 1831, 12; 
; 1833, 19; 1834, 13; 1835, 11; 
; 1837, 16; 1838, 14; 1839, 16; 
; 1841, 19; 1842, 18; 1843, 18; 
; 1846, 18; 1846, 21; 1847, 26; 
; 1849, 32; 1860, 29; 1851, 29; 
; 1863, 25; 1864, 20; 1865, 29; 
; 1857, 16; 1858, 22; 1869, 31; 
; 1861, 47; 1862, 66; 1863, 69; 
864, 62; 1865, 67; 1866, 47; 1867, 8; 
making a total of 1263. 
The report points out the rapid increase from 
858 to 1866 and thedecrease in 1866 and 1867, 
after the new law came into operation. ^' Les 
besoins de la population," says Mr. Doutre, 
in his report, '' n' exigent pas un aussi grand 
nombre d'avocats. Comme le faisait re- 
marquer un avocat fran^ais d'un grand m^- 
rite, M. Dxtpin, les proces augmentent en 
raison meme du nombre des avocats. Moins 
il y a d'avocats, moins il y aura de proces 
chicaniers et futiles qui ne naissent que par 
la n6cessit§ de procurer de quoi vivre au sur- 
plus du nombre requis des avocats ; moins il ^ 
y a d' avocats plus il y a de desinteressement 
et d'honneur dans la profession ; car alors les 
membres du Barreau pen vent suffir aux be- 
soins de la population, et ils n'ont pas besoin 
d' accepter de ces procds qui dSshonorent la 
profession en m§me temps quails ruinent les 
families. 

^'Si le Barreau veut Stre respects, il doit 
Stre respectable. H cesse de FStre dds qu'il 
oesse de se recruter exclusiven^nt dana la 



828, 


20; 


832, 


16; 


836, 


l*^? 


840, 


18; 


844, 


19; 


848, 


32; 


862, 


21; 


866, 


16; 


860, 


32; 



26 



THE CANADA LAW JOURNAL. 



[August^ 186r. 



classe du m6rite et de rhonnetetS. H est vrai 
que le talent fait la reputation, mais la mo- 
ralite seule la consolide et la perp^tue. La 
magistrature qui doit Stre digne, honnete et 
impartiale s'alimente dans le Barreau. L'hon- 
near de ce dernier rejaillit sur elle. H est 
done de Tinteret de la communaut6 en g§n§- 
ral que le Barreau soit severe sur le cboiz de 
ses^membres. La loi de 1866, quoiqu'elle 
laiese quelque chose d* d^sirer, cfire d'excel- 
lents moyens de Tdtre ; c'est 4 lui d* les uti- 
liser yigoureusement. 

^' H n'y a pas qu'un sentivent de conser. 
vation et d'int^rSt qui guide le barreau dans 
sa sST^ritS vis-siryis des aspirants d* Petude et 
& la pratique de la profession, il y a aussi un 
sentiment honorable qui consiste d* d6tourner 
une grand partie de la jeunesse du d6sir de 
se liyrer k la pratique d'une profession qui ne 
lui ofirira pas les moyens de subsistance, si 
elle est encombree. Les cinq mois qui vien- 
nent de s'6couler ont demontre parfaitement 
ce que cette loi nous promettait pour Tavenir. 
^^ Une autre partie importante de la loi m6rite 
d'etre remarquee. Les plaideurs qui ont ik se 
plaindre de la conduite de leurs avocats peu- 
yent obtenir plus facilement justice deyant le 
conseil de section auquel ces ayocats appar- 
tiennent. Sous Fancien syst^me il 6tait im- 
possible d' obtenir un jugement eflfectif contre 
un ayocat malhonndte, car ce jugement rendu 
par le conseil de section ne pouyait ayoir 
d'effet que s'il 6tait ratifie par le Conseil 
General qui n'existait alors que sur le papier. 
Aujourd'hui il n'en est plusde m§me, le Con- 
seil de section est constituS en tribunal; il pos- 
sede les mSmes priyileges que les cours de 
justice pour obliger les temoins a rendre leur 
t6moignage, et son jugement. si on n'en inter- 
jette pas appel dans les 30 jours, a son plein 
et entier effet. Le Conseil General est un 
tribunal d' appel, qui ne ratifie pas, comme 
par le passe, mais qui confirme ou infirme le 
jugement qui lui est soumis, non par le con- 
seil de section mais par Paccuse. Les assem- 
blies du Conseil General sont faciles k conyo- 
quer. II est important que les clients sachent 
qu'ils peuyent se fair rendre justice au Bar- 
reau, et faire punir les ayocats qui ont tromp6 
leur confiance. Cet acces facile a la justice 
du Barreau et la publicity des jugements ren- 



dront plus scrupuleux ceux qui croyaient que- 
toutes les infractionB k la discipline et 4 1'hon- 
neur du Barreau restaient impunies. C'est 
par ce moyen qu'il est possible de maintenir 
le Barreau dans une position de moralite et 
d'honnStete qui impose le respect et la con- 
fiance de la communaute en general." 



INCREASE OF SENTENCE. 
Two burglars were recently conyicted at Kings- 
ton Assizes. When their sentences had been 
pronounced, they suddenly, in a fit of fury, 
attacked the jailers, and, half a dozen police- 
men jumping into the dock, a terrible conflict 
ensued. The sentences were respectively 
eight and ten years' penal servitude j and,, 
upon this exhibition of ferocity and violence, 
the judge ordered the convicts to be again 
placed at the bar, and enlarged their terms of 
servitude to twelve and fifteen years, respec- 
tively. Some question has arisen as to whe. 
ther the judge was justified in pursuing this 
course. The Law Times declares that the 
subject does not admit of a doubt ; that the 
regularity and legality of such a proceeding is 
thoroughly settled. It cites as authorities, 
Be£f. v. Fiizgeraldf 1 Salk. 401 ; Inter the In- 
habitants of St. Andrews, Holhom, and St, 
Clement DameSy 2 Salk. 667 j and Bex v. JWce, 
6 East, 328. A curious account of similar 
conduct on the part of a prisoner, and of its 
speedy punishment, is given in the following 
marginal note, by Chief Justice Treby, ta 
Dyer's Reports : — 

Richardson, C. J. de C. B., at Assizes at 
Salisbury, in summer 1631, fuit assault per 
Prisoner la condemne pur Felony j qui puis 
son condemnation ject un Brickbat a le dit 
Justice, que narrowly mist. Et pur ceo im- 
mediately fuit Indictment drawn pur Noy en- 
vers le Prisoner, et son dexter manus ampute 
et fixe al Gibbet sur que luy mesme imme- 
diately hange in presence de Court. 



DEFICIENCY OF JUDGES IN ENGLISH 

COURTS. 

The following from the T^mes of June 20, 
shows how greatly business is impeded by a 
tenacious adherence to the old judicial ma- 
chinery, which is quite inadequate to the- 
wants of the present day. 



August, 186Y.] 



THE CANADA LAW JOURNAL. 



2r 



^' This was the second of the first two days 
appointed for the sittings of the Court out of 
Term, and in the course of the day, as also 
yesterday and almost every day during the 
sittings in bancj discussions arose as to the 
difficulty the Court finds in so constituting it- 
self as to enable itself to carry on the business. 
It will be observed that the Court, as stated 
by one of the judges to-day, holds these post 
terminal sittings primarily for the purpose of 
clearing the New Trial Paper, in order that 
'Cases in which new trials are granted may be 
sent down to trial at the assizes without de- 
lay. But when the Court sits as a kind of 
court of appeal on an application for new trial 
for misdirection, as it is either in the nature 
of an appeal from the presiding judge, or turns 
upon the facts with which he is best acquaint- 
ed, it is not considered by the Bar satisfactory 
that a case should be heard by less than two 
judges in addition to the judge who tried the 
case J and this requires that there should be 
a court composed, at least, of three members. 
But, then, as the Lord Chief Justice is sitting 
at Nisi Prius — and another judge ought to be 
sitting to clear the enormous cause list — and 
another is wanted at Chambers, and one or 
more are wanted in the Courts of Error, Pro- 
bate and Divorce (to say nothing of the Cen- 
tral Criminal Court), and there are only five 
judges in each court, there is, it will be seen, 
great difficulty in carrying on these sittings, 
and t;he courts have continually to put off or 
break off cases, in a manner exceedingly in- 
convenient to justice, simply because it is im- 
possible for one judge to be in more than one 
place at a time, and it is also impossible to 
make five judges into seven or eight. Thus, 
in the course of the day, Mr. Justice Black- 
burn having gone to Chambers, and an im- 
portant case standing next on the paper, 
which it was found could not come on to- 
day,- 

Mr. Brett, counsel for the plaintiff, said 
there was an important new trial case which 
would occupy a great deal of time when it 
came to be discussed, and he should not 
think it satisfactory that it should be heard 
with only one judge besides the judge who 
tried it. 

The Lord Chief Justice. — Certainly not. 



Mr. Brett said that, as it stood for argu- 
ment at the sittings next week, this must be 
the result, as the Lord Chief Justice and an- 
other judge would be at Nisi PriuSf and a 
third at Chambers, or in a Court of Error. 
He should not object to its standing over till 
next Term. 

Mr. E. James, counsel for the defendants, 
said he quite agreed in the suggestion of his 
learned friend. 

Mr. Justice Mellor. — Unless we are some- 
how relieved of going to Chambers, only two 
judges can be found to sit, at least for half 
the day, and as one of these must be my 
brother Shee, who tried the case, there cannot 
be a satisfactory tribunal for the parties. 

The Lord Chief Justice. — What is the 
present condition of the Bill relating to the 
Masters at Chambers ? In ordinary times we 
can manage with the present machinery j but 
out of Term, with two judges at Nisi PritiSj 
the demands upon us for the Exchequer 
Chamber, and the necessity of appointing 
sittings in banc out of Term, unless we are in 
some way relieved of the business at Cham- 
bers, public business in the courts must come 
to a deadlock. 

It was then agreed that the case in ques- 
tion should be postponed till Michaelmas 
Term. 

It may be mentioned that this very day the 
Court of Error in the Exchequer Chamber 
had to break off in the middle of a case and 
rise early, simply through deficiency of judges 
— two of the learned judges having to go to 
Chambers, where one from each court is re- 
quired daily, so that only four were left to 
review a decision by an equal number of 
judges in the Court below. The condition of 
the Court of Exchequer Chamber, with regard 
to its constitution, is daily a subject of com- 
plaint and dissatisfaction, arising from the 
same cause— cases decided by four judges, and 
it may be in accordance with one or more de- 
cisions by four judges in other courts — i. e., 
the decision of eight or ten or twelve judges 
being continually reviewed and reversed by 
five or six, perhaps by a majority of three out 
of five, or four out of six. And the condition 
either on the one hand of the New Trial 
Paper or Special Paper of the courts in banc, 



THE CANADA LAW JOtJBNAL. 



nd on tbe other h&nd of the c^nse liats in 
the difibrent coorla, ahowa an accamoladoti 
of boai neas which cert^nl; the Bar beliere to 
be owing to the deflcieucj of judges, and 
which, whatern be Uie cause, aod whatcrer 
mar be the proper lemtdj, gives ri»e to an 
enonnoue amoual of vexation, delay, and ex- 
peoM to the suitora, and often amonnte to a 
denial of JDstice. 



APPOINTMENTS. 

Hon. Q6d6(,a Ooimet, to be Atlomej Oen- 
erat of tbe Province of Quebec, (Qazetted lS(h 
July, 18S7>. 

Hon. Qeorge Irvine, to be Solicitor General 
of the Province of Qaebec, (Gazetted 15th 
Jnlv, 1867.) 

Eaoaard Joseph Laagevin, Esq., to he Clerk 
of theCrownin^Chancery.insndlbT theDo- 
roin)<Hi of Canada, (Qaiettedl3th JnljjlSST.)' 



B*NKHUPTCT-A881GSMEST8.-PROVD(C£8 OF QUEBEC AKD OHTABIO. 



;.>AMi aronoLvnT. 


















S:^^;;;: 


BelfaoB'.J!B"////^'///^'.'.'.'.'.'.'.. '.'.'. 
























cKSwEi-.M^ii^id' :::;::::;::::: 






;s^.v.-;:;;;;;:;.-;.-: 














rowBihlpToWMwd... 










IHI Spring* 




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Undraw Q., l 




"■I 


rawDBhlp Torouto 








f^ttt 


Bbetbrooke 

St.lfutin,IIeJ«nu 











Ana. Sod. 
ivS SOIh. 
Jane 18th. 
JalT 24th. 
June S6tb. 
Jul* 131b. 
JDI7 22nd. 
An*, let. 

JulT STtb. 
Julv 271 h. 
JdIt loth. 
JoJv lOlh. 
Juij 28rd. 
Julr 24th. 
Jolr 26lh. 
JniT eth. 
Unlf SSrd 
July SOth. 
July 20th. 
JniT 27th. 
Aug. Slh. 
AOK. loth. 
July 4th. 
Julv 29th. 
Jolf IGth. 

jnir leth! 

JalT 10th. 
.Jnlv and. 
Jut7 24th. 

Allg. 16th. 

JVlj 16th. 
Jul; 28rd. 
Jnlr Slh. 
Ade- Uth. 
Jul* 12th. 
Julr 81«t. 
Julv 10th. 
Juir loth. 

A«f. 9)lh. 

Aug. sard. 
Aag, bth. 
AltK. Zlet. 



August, 1867.] 



THE CANADA LAW JOURNAL. 



29 



BAVKBUFrCY-ASBIGNMENTS.-am^fmied. 



SAXB OV DTSOLTSHT. 



Bie, Johnson « . . 

Son, Bobert 

Bonsseau, Joseph 

Scott, John Alexander 

Sipes, John 

Sloan, James, and Jas. Anderson. 

Smith, James Hair^ 

Sovereign, FredericK 

Spencer, Henry 

Satberland, Donald 

Teiryberry, Jacob B 

Teiryberry, John Y 

Traax, Chester A 

Vaneamp, Lewis 

Tenner, Tierre 

Wardle, Alfined 

Weesor, Benjamin 

Wills, Jabez 

Wrisrht, W.,& Co 

YonKilovitz, Dame Alice 



La Presentation. 
Stratford 



Frelighsbozg. 
Hamilton. . . . 



Windsor. 



▲ssioirxB. 



WJk.Mittleberger 
Joseph Kogers. . . 
T. Sauvaireau.... 

Thos. Miner 

Alex. McGregor. 
Jas. McWhirter. . 

John Whyte 

A. J.Donlj 



J. J. Mason 

Thomas Clarkson. 
WAJfittleberger 
W.A.Mittleberger 

J. McCrae 

John Henry 

L. H. Gosselin. . . 
Thos. Charcher. . 
W.A.Mittleberger 
W.A.Mittleberger 

A. Fraser 

A B.Stewart.... 



BSBIDXirOB. 



St. Catharines 

Barrie 

Montreal 

Stratford 

Gait 

Woodstock. . 

Montreal 

Simcoe 

Hamilton. . . . 

Toronto 

St. Catharines 
StiCatharines 

Windsor 

Oshawa 

St.JferOme.Mt 

London 

St. Catharines 
St. Catharines 

Quebec 

Montreal 



DATS OF KO- 
TlCn TO PILB 
OLAIMB. 



July 22nd. 
Aag. 8rd. 
July 12th. 
July 28rd.^ 
Aug. 6th. 
July 20th. 
July 6th. 
Aug. 6th. 
Aug. 10th. 
Aug. 6th. 
July 18th. 
July 18th. 
July 24th. 
July 10th 
June 27th. 
July 26th. 
July 19th. 
July 27th. 
July 10th. 
July 16th. 



PRIVY COUNCIL CASE. 

Nov. 2, 1866. 

Present : — ^Lord Westbury, Sir James 
William Colvile, and Sir Edward Vaughan 

WiLLLiMS. 

In the mtxtter of Thomas James Wallace, 
AN Attorney and Barrister. 

[On appeal from the Supreme Court, Hali- 
isjLj Nora Scotia.] 

Contempt of Court — Order suspending At- 
torney and Barrister for contempt. 

An order suspending an Attorney and Bar- 
rister of the Supreme Court of Nova Scotia 
irom practising in that Court, for having ad- 
dreseed a letter to the Chief Justice, reflecting 
on the Judzes and the administration of jus- 
tice genersQly in the Court, discharged by 
the Judicial Committee, as it substituted a 
penalty and mode of punishment whith was 
not the appropriate and fitting punishment 
for the offence. 

The letter, though a contempt of Court and 
punishable by fine and imprisonment, having 
been vnritten by a practitioner in his indivi- 
dual and private capacity as a suitor, in re- 
flpect of a supposed ^ievanoe' as a suitor, of 
an injury done to him as such suitor, and 
having no connection whatever with his pro- 
fessional character, or anything done by him 
professionally, either as an Attorney or Bar- 
rister, it was not competent for the Supreme 
Court to go further than award to the cSSence 
the customary punishment for contempt of 
Court; or to inflict a professional punish- 
ment of indefinite suspension for an act not 
<ione professionally, and whiebf per m, did not 



render the party committing it unfit to remain 
a practitioner of the Court 

This was an appeal from an Order of the 
Supreme Court at Halifax, Nova Scotia, sus- 
pending the Appellant from practising in that 
Court as an Attorney and Barrister, made 
under the following circumstances. 

The appellant was admitted an Attorney 
and Barrister of the Supreme Court at Hali- 
fax, N. S., and practised therein up to the 
period of his suspension, as hereinafter men- 
tioned ; he also practised as an advocate and 
proctor in the Court of Probate of that Pro- 
vince. The appellant had been defendant in 
two suits (Dunphy v. Wallaeej and The City 
of Halifax v. Wallace) depending in the Su- 
preme Court, and he had also been plaintiff 
in another suit before the same Court, Wal- 
lace V. Comnolly^ and was likewise, from time 
to time, engaged on other matters before the 
Court in his capacity of Attorney and Bar- 
rister. In the suit of Thmphy v. WdXkace^ 
a decision was given by the Supreme Court 
advise to the appellant, and leave to appeal 
therefrom to Her Majesty in Council was re- 
fused by the Court in a judgment delivered 
by the Chief Justice. As the appellant in- 
tended to petition Her Majesty in Council fbr 
leave to appeal from this refusal, the Chief 
Justice was requested by the aj^llant, with 
a view to such petition, to file the judgment 
delivered by him in that case. The Chief 
Justice thereupon filed a written judgment, 



30 



THE CANADA LAW JOURNAL. 



[August, 1867. 



differing, as it was alleged by the appellant, 
materially from the judgment actually deli- 
vered in Court ; proceeding upon grounds not 
mentioned in that judgment, and containing 
additional statements, which the appellant 
conceived were calculated to prejudice his in- 
tended application for leave to appeal. 

In the course of the other suit, Wallace v. 
Connolly, a decision was likewise given ad- 
verse to the appellant. Such decision was 
pronounced by the Chief Justice after hearing 
both the parties upon affidavits in open Court, 
and after taking time to consider ; but the 
Chief Justice, in his judgment, stated that he 
had received from a Mr. Smith, out of Court, 
information which differed from the state- 
ments made by the appellant in one of the 
affidavits ] the appellant not having been pres- 
ent at the alleged interview with Mr. Smith. 

Previously also to the month of January, 
1865, the appellant had been informed that, 
in reference to other proceedings in which he 
was interested before the Supreme Court, ob- 
servations prejudicial to him had been made 
to one of the parties by the Chief Justice out 
of Court, and that certain proceedings against 
him had been recommended by the Chief 
Justice in an interview with one of the par- 
ties; and in certain matters also in which 
the appellant was professionally engaged be- 
fore him at Chambers, the Chief Justice had, 
as the appellant conceived, acted in a manner 
which he deejied unusual and oppressive, 
and which induced him, as he alleged, to 
avoid Chamber business before the Chief Jus- 
tice. 

On the 10th of January, 1863, an order was 
made by Mr. Sutherland, the Judge of the 
Court ot Probate at Halifax, declaring that 
the appellant had been guilty of a contempt 
of the Court, and suspending him from prac- 
tising therein as an advocate and proctor. 
The appellant appealed from the order of the 
Judge of Probate to the Supreme Court, con- 
ceiving that he was entitled to such appeal 
under the provisions of the Revised Statutes 
of Nova ScoUa, c. 127, s. 77. 

The appeal came on for hearing before the 
Supreme Court in the month of December, 
1864, when judgment was given to the effect, 
that the appeal, haviag been taken under the 



Provincial Statute, and not by certiorarij was 
not judicially before the Court and could not 
be entertained. In the month of January, 
1865, the appellant moved the Chief Justice, 
at Chambers, to allow an appeal from that 
decision to Her Majesty in Council. The 
Chief Justice refused leave to appeal from the 
decision of the Supreme Court against the 
order of suspension made by the Judge of the 
Court of Probate. The judgment of the Su- 
preme Court, both upon the main question of 
the appeal from the order of suspension, and 
tJie application of the appellant for leave to 
appeal therefrom to Her Majesty in Council, 
was reduced to writing by the Chief Justice, 
and filed. 

The appellant being desirous to petition 
Her Majesty in Council for leave to appeal 
from the last mentioned judgment of the 
Supreme Court, and being, as he stated, ap- 
prehensive that additions might be made 
to the written judgment, as he alleged was 
done in the case of Dunphy v. WaUace, as 
well as aggrieved at the course pursued by 
the Chief Justice in the cases of Dunphy v. 
Wallace and Wallace v. Connolly, and feeling 
injured by the observations and the recom- 
mendations of proceedings which it had beea 
reported to him, as already stated, had been 
made with reference to him by the Chief Jus-^ 
tice; on the 26th January, 1865, sent the 
following letter to the Chief Justice: "The 
Honourable Chief Justice, Sir, — ^I shall feel 
obliged by your filing the judgment given 
in Court, in my case with^ Mr. Sutherland, 
without any additions. I say without any 
additions, be.cause in the case of Dunphy v. 
Wallace, I had much reason to complain of 
the decision there filed, as very material addi- 
tions were made to it, and much said with a 
view, as I and others thought, of meeting me 
at England. I must, I think, decline sending 
to England the decision given on my petition 
for an appeal, in consequence of a statement 
made therein, to the effect that other modes 
were pointed out by the Court by which the 
matter might have been removed ; but I re- 
member only one way mentioned, that by 
cerUorarij and this certainly is not modes* 
... .It was in that case I good-naturedly re- 
marked, that the decision would likely b^ 



Augnsty 1867.] 



THE CANADA LAW JOURNAL. 



31 



different when it fell to my lot to be on the 
other side. And I venture to say, had my 
case with Mr. Sutherland been removed in 
the first instance by certwrari, a course, 
however, which never occurred to my coun- 
sel, I would have been met with a thousand 
objections, resulting in my defeat, as on the 
appeal. 

" I may be wrong, but I can't help think- 
ing that I am not fairly dealt with by the 
Court or Judges, and that the well-beaten 
track is often departed from for some bye-way 
to defeat me. Even in that little case of 
Wallace v. Connolly ^ the case was not decided 
upon the affidavits, but a person was spoken 
to out of doors, and the case decided upon 
what he said, not under oath, while the rule 
is, that a judge can't use even knowledge 
within his own mind, much less obtain it 
from others, but must decide upon the affida- 
vits. Better tell me at once to bring no affi- 
davits into Court; for if Mr. Smith, or any 
such person shall even state to me that there 
is a different impression of the facts on his 
mind, you must fail as a matter of course. I 
could also recall cases, where the decision 
was, I believe, largely influenced, if not wholly 
based, upon information received privately 
from the wife of one of the parties by the 
Judge. Is this justice ? I think a Judge in 
England would be a little startled to hear 
that a Jud^e in Nova Scotia listened to, much 
less decided upon, information obtained in 
this way. 

'^I was on more than one occasion almost 
tempted to bring these things to the notice of 
the Legislature, but I overlooked them, as I 
trust you will overlook anything in this, 
should there be anything in it not strictly 
within allowable limits. Tour very obedient 
servant, T. J. Wallace." 

The appellant stated, in the affidavit he 
afterwards made, that in writing this letter 
he had no intention whatever to impugn the 
conduct of any of the Puisn6 Judges of the 
Supreme Court, and no intention whatever of 
offending or insulting either them or the Chief 
Justice, his only object being to state in tem- 
perate language the grievances of which he 
felt he had reason to complain ; but fearing 
afterwards that the course, taken under some 



degree of irritation, might be considered irre- 
gular or offensive, he had availed himself of 
an opportunity of meeting the Chief Justice 
to disavow any intention to offend or insult 
him, and offered to him a full apology. 

Notwithstanding such apology, however, 
a rule of the Supreme Court was, on the 18th 
of July, 1865, without any motion to that 
effect by Counsel, drawn up on reading the 
letter, adjudging it a contempt of Court, and 
calling upon the appellant to show cause 
why he should not be suspended from prac- 
tice as an attorney and barrister until he 
should make a suitable apology in writing, 
to be read in open Court, for such his con- 
tempt. 

On the 22nd of July, 1865, the appellant 
appeared in person, and being called upon 
by the Court, showed cause against the rule 
nisi, upon an affidavit in which he related 
the circumstances under which the letter was 
written, and the fact that he had made an 
apology to the Chief Justice. 

On the 29th of July, 1866, the rule was 
made absolute by the Supreme Court to sus- 
pend the appellant from practice as an attor- 
ney and barrister of the Court, without fixing 
any period for such suspension, or annexing 
any condition thereto. 

The Chief Justice, the other five Judges 
being present, delivered the following judg- 
ment of the Court : — *^ The judgment I am 
about to pronounce is to be taken as the judg- 
ment of the whole Court ) and having been 
submitted to my brother Judges, and met their 
approval, it is to be received as the unani- 
mous expression of our opinions. The Judge 
of Probate at Halifax, having passed an order 
on the 10th of January, 1863, declaring that 
Wallace had been guilty of a contempt, com« 
mitted by him in the face of that Court, and 
suspending him from practice therein as advo- 
cate or proctor, Mr. Wallace appealed from 
that order to the Supreme Court, and the 
appeal was heard before us in December last, 
when we decided, for the reasons assigned in 
a written judgment now on file, that the ap- 
peal having been taken under the Provincial 
Statute, and not by ceriiorcaHy could not be 
entertained ; that Mr. Wallace had mistaken 
his course, and that the contempt, therefor^ 



3^ 



THE CANADA LAW JOURNAL. 



[Angast, 186T. 



was not judicially before us* In January lasty 
having taken charge of the business for that 
month, Mr. Wallace moved me at Chambers 
to allow an appeal from the above decision to 
Her Majesty in Her Privy Council. As a 
matter of this kind; whoever the mover might 
be, affected more or less the privileges of the 
Bar, I thought it advisable to consult such 
of my brethren as were in town, all the 
Judges, in &ct, being here, except Mr. Jus- 
tice Dodd, then in Cape Breton, and they 
concurred with me in thinking, as the main 
quesUon of a contempt had not been consi- 
dered, and as the case on that account was 
not ripe for an appeal, that the appeal ought 
not to be allowed. The reasons for that de- 
cision were expanded in the written judgment 
already referred to, which was filed on the 
24th' of January in Mr. Wallace's presence, 
the instant it was delivered. On the 26th of 
the same month, Mr. Wallace thought fit to 
send to roe the letter which has led to these 
proceedings. In that letter he not only im- 
pugns, in very offensive terms, my decision of 
the 24th of January, which appeared on the 
face of it to have been concurred in by the 
other Judges, but be assails also the judg- 
ment of the whole Court on his appeal in 
December from the Court of Probate. He 
then makes a general charge against the 
Judges, in language too insulting to be re- 
peated, and winds up with a criticism, in the 
same style, on some of the pettier matters 
which I had decided at Chambers. A letter 
of this character from a practitioner to a judge 
of an English Court is an outrage which pro- 
bably was never perpetrated before, and which 
it was impossible to pass over in silence. 
Neither was it a fit matter to be dealt with 
by any one Judge, and therefore I contented 
myself with stating, in the presence of Mr. 
Wallace and of the Bar at the next Chamber 
day, that I had received a letter of this extraor- 
dinary kind, and that, on the first day of the 
ensuing Trinity term, Mr. Wallace would be 
called upon to answer it. While the utmost 
boldness and liberty of speech and action are 
ftiUy and freely conceded to every member of 
the Bar, as belonging to his position, and as 
essential to the rights of his clients, no less 
than to his own, and none on this Bench 



would attempt or desire to restrain them, on 
the other hand, a gentlemanly conduct, and 
a decorous and respectful treatment of the 
Judges of the land, in all intercourse between 
them and the Bar, must necessarily be ob- 
served by the latter. If the Judges can be 
insulted by language or letter addressed to 
them, and such a contempt of their persons 
and authority committtd with impunity, their 
weight and infiuence would be lost, and, fail- 
ing to vindicate the dignity of their office thus 
outraged, they would forfeit, and deserve Uy 
forfeit, the public respect and confidence so 
necessary to their character and the due ad- 
ministration of justice. It was this feeling, 
and the necessity thus imposed on us by the 
letter of Mr. Wallace, rather than any per- 
sonal consideration, which has compelled us 
to take steps against him. On the 18th instant 
his letter was accordingly verified and filed, 
and we passed a rule nisi. By the terms of this 
rule, the offence of which he was guilty and the 
consequences to which it would subject him 
were stated, and the mode by which he might 
atone for the one and avoid the other. To 
any well-regulated mind, the opportunity so 
afforded for consideration and apology would 
have been all that was required. If through 
ignorance, or want of judgment, or the ab- 
sence of proper feeling, in a moment of irrita- 
tion, from infirmity of temper, or any other 
cause short of a deliberate intention to insult,^ 
such a letter had been hastily penned, time 
and reflection would have enabled the delin- 
quent to see his error, and to make such re- 
paration for it as was in his power. Let us 
see what course Mr. Wallace has pursued. 
On the 22nd instant he appeared in person 
to show cause, and was heard patiently and 
at length upon several objections to our pro- 
ceedings. He urged, among other things, 
that the Court had no authority to move in 
this matter, except at the instance of a bar- 
rister; that there was no evidence of the 
letter having come into my possession, or 
how it had gone out of the possession of the 
writer ; that the letter could not be construed 
into a contempt ; that if it were a contempt 
it would not vindicate a suspension ; and on 
these and other grounds of a technical kind, 
he insisted that he ought not to be called 



August, 1867.] 



THE CANADA LAW JOURNAL. 



as 





upon. But Mr. Wallace entirely misappre- 
hended his position. This was not a con- 
tempt for the non-payment of money, or for 
disobeying some order of the Court in the pro- 
gress of a snit, but a contempt levelled at the 
Court itself) and which the Court has the 
authority and the right to adjudicate upon of 
its own motion, without invoking the aid of any 
barrister, upon the production of the obnoxious 
letter by the Judge to whom it was addressed. 
In Lechfnere CharlUnCs case (2 My. and Cr. 
316) Lord Cottenham, then Lord Chancellor, 
pursued the course we have adopted here. 
Letters having been addressed by Mr. Charl- 
ton, a barrister and member of Parliament, 
to one of the Masters of the Court of Chan- 
cery, and to the Lord Chancellor, of a highly 
objectionable kind, and reflecting upon the 
proceedings of the master in an inquiry then 
before him, his Lordship, after directing copies 
to be served upon the parties concerned (here 
there are no parties to be served), took notice 
thereof in open Court, and after declaring that 
the letter to the Master contained scandalous 
matter, and that the conduct of Mr. Charlton, 
in writing the two letters, was a contempt of 
the Court of Chancery, passed an order that 
he should show cause on a certain day, why 
he should not be committed to the Fleet 
prison for his contempt. Mr. Charlton hav- 
ing failed to show cause, the Chancellor, after 
remarking that every writing, letter, or publi- 
cation, which has for its object to divert the 
course of justice, is a contempt of the Court, 
and that every insult offered to a Judge in 
the exercise of the duties of his office, is a 
contempt, concluded by ordering Mr. Charl- 
ton's committal. This was effected at a sub- 
sequent day, and the House of Commons 
having refused to interfere, and Mr. Charl- 
ton having made a suitable submission, and 
expressed his contrition for the offence he 
had committed, he was discharged, after hav- 
ing been in prison for three weeks. It will 
be seen, therefore, that we have guided our- 
selves by a precedent of high authority, while 
our right to substitute a suspension from 
practice for imprisonment is too clear to be 
disputed. It is proper also to add, that we 
have looked into the cases of Smith v. The 
Jwgtkea of Sierra Leone (3 Moore's P. C. 



Cases, 361 ; and 7 Moore's P. C. Cases, lU), 
In re Dovome asnd ArrindeU (3 Moore's P. C. 
Cases, 414), in the Privy Council, cited ttom 
3rd and 7th of Moore's P. C. Cases, as well as 
several others to be found in Ist Enapp's 
Reps., and 1st and 8th Moore's P. C. Cases. 
In addition to the technical and other grounds 
we have thus disposed of, in the place of the 
apology, which, as I have said, this Court 
might reasonably have expected, and which 
any judicious adviser would certainly have 
recommended, Mr. Wallace produced an 
affidavit made by himself, which aggravates 
his offence, and is an accumulation of fresh 
insults. Had we thought fit, we would have 
been justified in refusing to receive this affi- 
davit, or in interrupting him while reading it. 
As we had already pronounced his letter to 
be a contempt, it was not competent for him 
to attempt a justification, and he could show 
cause only by denying, if he could, or if pos- 
sible, explaining away or extenuating his 
offence. But we preferred affording him a 
full hearing, and as no letter or affidavit of 
his could touch the reputation of this Bench, 
or any member of it, we allowed him to go 
on without interfering. This affidavit is the 
more inexcusable because in the nature of 
things it could not be answered. Parts of it 
are founded upon hearsay, which is not evi- 
dence, and in the most triffing matters is not 
admissible in this Court. Parts of it rest 
upon the mere assertion of Mr. Wallace, at 
variance with all our impressions and recol- 
lections, but in which he must pass of course 
uncontradicted. And much of it relates to 
recent transactions in the knowledge of one 
or other of the members of the Bar, or of the 
officers of the Court, and which are repre- 
sented in a manner quite inconsistent with 
the facts, and with the papers on the file. 
We content ourselves with these general ob- 
servations, for it is obvious that to descend 
into details, and stoop to a vindication of this 
Court, would be a complete surrender of its 
independence and its dignity. If Judges forget 
their duty, if they lay themselves open to im- 
putation, and are amenable to censure, ade- 
quate remedies are provided by the law and 
constitution of the country. A single Judge 
at every step is subject to control. Every 



34 



THE CANADA LAW JOURNAL. 



[August, 1867. 



cliarge he delivers to a jury, every order he 
signs at Chambers, every taxation of costs, 
every judicial action, and every refusal to 
act, may be appealed from to his brethren ; 
and for the higher breaches of duty by one 
Judge, or by all the Judges, there are the 
means of constitutional redress. But this is 
the first time that Judges have been assailed 
in their own Court by a practitioner, when 
invited to atone for a contempt, putting on 
the files an affidavit which in every paragraph 
is a new offence. It is evident that no Court, 
having a just regard to its position, could 
permit such an affidavit to remain among its 
records, and, therefore, we direct this affida- 
vit to be taken off the file. In conclusion, 
we have only to repeat that we would wil- 
lingly have been excused from moving in this 
matter. We have not been actuated by per- 
sonal resentment, nor by any apprehensions 
that Mr. Wallace's actions or censure in any 
shape could possibly excite. We have looked 
only to what was required for the due admi- 
nistration of the law, and while there has 
never been any difference of opinion or doubt 
among ourselves as to what was necessary 
and proper to be done, we have taken care 
that ample time 'should be afiorded to the 
party to reflect upon his position, and avert 
the consequences he has drawn down upon 
himself. We have no alternative now but 
the performance of an imperative duty in 
directing the following rule to be filed." 

The rule nisi was then made absolute in 
pursuance of the judgment, suspending the 
appellant from practice as an attorney and 
barrister in that Court. 

The appellant applied to the Supreme 
Court for leave to appeal to Her Majesty in 
Council, when the following judgment of the 
Court, giving leave to appeal, was delivered 
by the Chief Justice, the other five Judges 
being present :— " Mr. Wallace having moved 
in person for leave to appeal to Her Majesty, 
in Her Privy Council, from the rule made on 
the 29th ult., suspeuding him from practice 
as an attorney and barrister of this Court, for 
a contempt thereof; we have referred to the 
order of Her Majesty in Council of the 20th 
of March, 1863, making provision for appeals 
to Her Majesty in Council from this Court j 



and from the terms in which that order is 
drawn, as well as from the cases decided in 
the Privy Council, we are of opinion, that the 
order in Council does not extend to such 
cases, and that it is incumbent on Mr. Wal- 
lace to apply to Her Majesty, in the first in- 
stance, to admit his appeal. But, inasmucli 
as Mr. Wallace has applied to us for such 
leave, complaining of the injury and delay to 
which our refusal would subject him, we 
have decided on giving him such leave, so 
far as we have power and authority so to do, 
not requiring from him any security for costs, 
but leaving him to act as he may be advised 
therein, or as Her Majesty may see fit to 
order." 

The appellant brought the present appeal, 
but in consequence of the judges of the Su- 
preme Court announcing that they would not 
appear, the appeal was heard ex parte. 

Sir Roundell Palmer, Q.C., and Sir T. D. 
Archibald^ for the appellant: — The order 
making the rule absolute suspending the ap- 
pellant from practising as an attorney and 
barrister in the Supreme Court at Halifax, 
until he should have a suitable apology, is 
illegal as well as oppressive. The contempt, 
if any, committed by the appellant, in writing 
the letter of the 26th of January, 1865, to the 
Chief Justice, was not committed by him in 
his professional character as an attorney or 
barrister, nor was it a contempt committed 
in open Court. It was a private letter written 
by him in his character of a suitor, and is in 
no respect a public document j and if any- 
thing unguarded and disrespectful was con- 
tained in it, nevertheless the apology con- 
tained in the letter, begging the Chief Justice 
to overlook anything, if there should be any- 
thing in it not strictly within allowable limits, 
ought to have satisfied the Chief Justice ; 
but the subsequent verbal apology made, as 
sworn to by the appellant, was an ample expia- 
tion of the supposed offence. This was not a 
case of professional misconduct, coming within 
the decision of this Court in Bunny v. T?ie 
Judges of New Zealand (15 Moore's P. C. 
cases, 164), nor is it similar to Lachmere 
Charlton's case, relied upon by the Judges in 
the Court below, as the letter there, besides 
being intemperate and insulting, contained a 



August, 1867.] 



THE CANADA LAW JOURNAL. 



3& 



threat against an officer of the Court. We 
suhmit that there is an absolute denial of 
justice in this case, for the rule absolute 
allows the appellant no means of purging his 
contempt; but, without disbarring him, or 
ptriking him off the rolls of the Supreme 
Court as an attorney, improperly suspends 
him from practice, indefinitely, and during 
the pleasure of the Court. The practice is to 
fine for contempt of Court: — The King v. 
Clement (4 B. and Aid. 218) j In re Pater 
(33 L. J. [N.S.] M. C. 142). The demand 
for a written apology to be read in open 
Court, which the rule nisi required, was un- 
precedented and unusual ; the only instance 
of such a requirement was in Coarus Wilson^ e 
case (7 Q. B. Rep. 984), which was under 
totally different circumstances, and was de- 
cided by the law of Jersey, and not the law of 
England and the practice of our Courts, which 
prevails in the Supreme Court at Halifax; 
that Court having the same powers as are 
exercised by the Courts of Chancery, Queen's 
Bench, Common Pleas, and Exchequer in 
England. 

Lord Westbury : — The appellant in this 
case is an advocate and also an attorney, ad- 
mitted to practice in the Supreme Court of 
Nova Scotia. It appears that he was also a 
suitor in that Court. In two or three cases 
in which he was such suitor he seems to have 
supposed that he had reason to complain of 
the conduct of the Judges of the Court, and 
he accordingly wrote a letter, addressed to the 
Chief Justice, reflecting on the Judges, and 
on the administration of justice generally in 
the Court ; which undoubtedly was a letter of 
a most reprehensible kind. This letter was 
a contempt of Court which it was hardly pos- 
sibly for the Court to omit taking cognizance 
of. It was an offence, however, committed 
by an individual in his capacity of a suitor in 
respect of his supposed rights as a suitor, 
and of an imaginary injury done to him as a 
suitor; and it had no connection whatever 
with his professional character, or anything 
done by him professionally, either as an ad- 
vocate or an attorney. It was a contempt of 
Court committed by an individual in his per- 
sonal character only. To offences of that 
kind there has been attached by law and by 



long practice, a definite kind of punishment, 
viz., fine and imprisonment. It must not,, 
however, be supposed that a Court of justice 
has not the power to remove the officers of 
the Court if unfit to be entrusted with a pro- 
fessional status and charactei^. If an advo- 
cate, for example, were found guilty of crime, 
there is no doubt that the Court would sus- 
pend him. If an attorney be found guilty of 
moral delinquency in his private character, 
there is no doubt that he may be struck off 
the roll. But in this particular case there is 
no delictum brought forward or assigned, ex- 
cept that which results from the fact of ad- 
dressing an improper and contemptuous letter 
to the Chief Justice of the Court, in respect 
of something supposed to have been done un- 
justly to the writer in his private capacity as 
a suitor. We think, therefore, there was no 
necessity for the Judges to go further than to 
award to that offence the customary punish- 
ment for contempt of Court. We do not find 
anything which renders it expedient for the 
public interest, or right for the Court, to in- 
terfere with the statues of the individual as a 
practitioner in that Court. In that respect, 
therefore, we think that the Judges departed 
from the course which ought to have been 
pursued, by adopting a different description of 
punishment from the ordinary punishment 
for offences of this nature. When an offence 
was committed which might have been ade- 
quately corrected by that punishment, and 
the offence was not one which subjected the 
individual committing it to anything like gen- 
eral infamy, or an imputation of bad charac- 
ter, so as to render his remaining in the 
Court as a practitioner improper, we think it 
was not competent to the Court to inflict upon 
him a professional punishment for an act 
which was not done professionally, and which 
act, per «c, did not render him improper to 
remain as a practitioner of the Court. On 
this ground, therefore, we do not approve of 
the order. At the same time we desire it to 
be understood that we entirely concur with 
the Judges of the Court below in the estimate 
which they have formed of the gross impro- 
priety of the conduct of the appellant. But 
we are still of opinion, that his conduct did 
not require and did not authorize a departure 



36 



THE CANADA LAW JOUENAL. 



[August^ 1867. 



from the ordinarj mode and standard of pan- 
iflhment ; and upon that groond, and that 
ground only, we shall advise Her Majesty to 
discharge the order, in respect of its having 
substituted a penalty and mode of punish- 
ment which was not the appropriate and fit- 
ting punishment for the case in question. Law 
Rep. 1 P.O. 283-296. 



MONTHLY NOTES. 
Superior Court — May 9. 

DlRLIKO ET AL., V. LSWIS €8 quoi. 

Ouaioms Ad — Cash DUeount, 

Monk, J. This was an action against the 
defendant in his then capacity of Acting Col- 
lector of Customs at the Port of Montreal, 
claiming four boxes of hardware, detained by 
him for additional duty thereon ) and in default 
ofthe goods being given up, asking that the 
defendant be condemned to pay the value 
thereof, with damages. These goods had be#n 
imported by the plaintiflfs from the United 
States, and a question arose as to whether the 
plaintiffs were entitled to deduct ten per oent^ 
which appeared on the fkce ofthe invoice, and 
which was alleged by them to be a trade dis- 
count, and therefore not subject to duty.' The 
Customs appraisers maintaining this to be a 
cash discount, the point was referred to Messrs. 
Ferrier and Crathern, as arbitrators under the 
provision of the Statute. These gentlemen 
rendered an award to the effect that the actual 
cost and market value of the goods was the 
net amount stated in the invoice, no reference 
being made to the nature of the discount. The 
Acting Collector was not satisfied with this 
award, and still detained the goods, where- 
upon the plaintiffs instituted the present ac- 
tion. The plea was that this ten percent was 
a cash discount, and could not be taken off j 
and further, that the award was illegal, and 
not such as the law required. The Court had 
to decide whether this was a trade or a cash 
discount, and, if a cash discount, whether the 
award was legal. In the first place, the pre- 
sumption was that this was a cash discount. 
Further, the Court had in evidence the circu- 
lar of the plaintiffs, in which it was stated 
that the ten per cent was for cash. So &r 
from the pretension ofthe plaintiffs being sus- 



tained by the evidence, it was perfectly clear 
that the ten per cent was a cash discount. 
This preliminary question being settled, it 
remained to be determined whether the award 
was legal and final. The award stated that 
the market value was the net amount of the 
invoice, and this seemed to be in fovour ofthe 
plaintiffs. In a note to the award reference 
was made to a letter addressed by the shippers 
to the plaintiffs, in which it was stated that 
the ten per cent was a cash discount, and that 
the plaintiffs never sold on credit. The de- 
fendant objected that this could not be receiv- 
ed, unless the contents of the letter were sus- 
tained by proof, and his Honor was of opinion 
that the letter in question was utterly value- 
less as testimony, and he was bound to say 
that the award was not such as the law requir- 
ed. It must, therefore, be set aside, and the 
action dismissed with costs. 

Oro88 Ss Lunnj for the Plaintiffs. 

PominviUe A Bitoumayf for the Defendant. 



Hopkins v. Thompson. 

Architect — Pkms according to condUions, 

Monk, J. This was an action brought by 
an architect to recover the value of his ser- 
vices in the preparation of plans for a church. 
It appeared that letters were addressed on be- 
half of the congregation to the plaintiff and 
three other architects, inviting them to sub- 
mit plans for the proposed edifice. Certain 
restrictions were imposed ; the cost was not to 
exceed $32,000. If the plan was rejected the 
competitor was to receive only $50. The let- 
ter to the plaintiff and the other architects 
was drawn up with a minuteness and precision 
calculated to put them on their guard to ob- 
serve the conditions imposed. The plaintiff, 
among others, prepared plans in accordance 
with the t«rms imposed, but all the plans sent 
in were rejected, except those of Mr. Thomas, 
and it appeared that his plans were not in ac- 
cordance with the conditions stated. When 
this fsLCt became known to the other archi- 
tects, they appeared to be much dissatisfied, 
and the plaintiff, one of their number, had in- 
stituted the present action for the quantum me- 
ruit of his services, refusing to accept the $50 
offered. The question, then, for the Court to 



August, 1867.] 



THE CANADA LAW JOURNAL. 



37 



determine was whether Mr. Hopkins was en- 
titled to his qmntum meruit, or only to the 
$50. It was contended in the plea that the 
congregation had reserved the right to reject 
the plans. The Court, however, had arrived 
at the conclusion that Mr. Hopkins was enti* 
tied to his quantum meruit. He was restricted 
to a certain price, and it was fully established 
that this restriction involved a great deal of 
extra labour and care. The defendants con- 
tracted with Mr. Hopkins that if he sent in 
plans which were satisfactory, he should have 
the work. He sent in plans accordingly, but 
the defendants accepted other plans which 
were not at all in conformity to the conditions. 
In doing this they violated the contract, and 
thus put an end to honest competition. If 
there was no competition, what remained 7 
Why, the plaintiff must recover the value of 
his services, which were proved to be equal to 
one per cent, amounting to $320, for which he 
would have judgment, with costs. 

ff, Stuart, Q, C, for the Plaintiff. 

S, Beihunej Q. C, for the Defendant. 



Bertband v. Brais. 

Pilot — Negligence. 
Monk, J. This was an action of damages 
against a pUot, brought by the captain of a 
barge. The plaintiff had a barge loaded with 
eighty-four cords of wood at the Cedars, and 
he sent for the defendant and asked him 
whether he would agree to pilot him through 
the rapids. It was contended by the plaintiff, 
in the first instance, that Brais had come to 
him and offered his services, and that an ex- 
press agreement was then entered into, that 
the defendant was to take the barge through 
the rapids for $4. As a matter of fact, the de- 
fendant did take charge of the barge on the 
15th July. They left the Cedars about three 
o'clock in the afternoon, the weather being 
fine, and got well through the first rapid. 
Then the question arose as to going through 
another rapid. Brais did not follow the course 
he had taken on previous occasions, but at- 
tempted to take another channel, and the up- 
shot was that the barge struck, the wood was 
thrown •verboaid, and the barge was conside- 
rably damaged. Now, thtf captain brought 



an action against the pilot for the value of 
the wood and for the cost of repairing the 
barge. The defendant said he never under- 
took to guarantee the plaintiff; and, in the 
next place, that the plaintiff refused to cast 
anchor when he told him. The first question 
the Court had to determine was, whether there 
was a contract — whether the pilot entered 
into a contract to pilot this barge through the 
rapids 7 It was contended that there was an 
implied contract to this effect, and for this 
reason, because on two occasions previously 
the defendant had piloted the plaintiff's boat 
down for the same sum. His Honor had 
come to the conclusion that there was an im- 
plied contract. Brais must be looked upon as 
a professional man, and held responsible for 
any neglect or want of skill. The duty of a 
pilot was to know his business well, and to 
exercise all possible diligence. First, as to 
the defendant's skill, the testimony was una- 
nimous and conclusive. On the second point 
— ^whether he had exercised all the diligence 
that could be exercised — ^the Court had had a 
great deal of difficulty. The first feature to be 
noticed was that he did not go down the chan- 
nel which he had gone down twice previously 
in safety. The case looked as if there had 
been a want of proper care, as if there had 
been negligence. The defendant was bound 
to exercise the utmost diligence. It was said 
the captain had absolved the pilot from the 
consequences, when he refused to anchor. 
Stated as a general principle, this was true ; 
but we must look at the position of matters- 
The vessel at the time the order was given, 
was bounding over the rocks. There would 
have been great danger in casting anchor* 
His Honor was clearly of opinion that the 
order to cast anchor came too late, and that 
no captain, with the responsibility on him of 
the life of his crew and of himself, and the 
safety of his cargo, would have been justified 
in obeying such an order at such a juncture. 
The pilot must be held responsible, but in 
what amount 7 The plaintiff cliumed the value 
of the repairs, and of the wood. This was too 
much. The evidence showed that he was in 
too great a hurry in throwing out the wood. 
He might have saved it. The pilot would not 
be held liable for the cargo^ but he must pay 



38 



THE CANADA LAW JOURNAL. 



[August^ 1867. 



for the damage to the vessel, which would be 
assessed at $120, with costs of the action 
brought. 

Dorian <k Dorian, for the Plaintiff. 
OcarHer, PondnoiUe d: Bitoumay, for the 
Defendant. 



SuPBBioB CouBT — ^March 30. 

Steyenson et al. v. McOwak. 

Bight of Capias eancurreatly with an as- 
signment. 

Monk, J. This was an application on 
the part of the defendant to be discharged 
from imprisonment under a capias. He was 
arrested on the 25th October last. He had 
been carrying on business in partnership 
with one Drummond, as shoe merchants. 
They took stock in April, 1866, by which it 
appeared that they had a large surplus over 
all their liabilities. They took stock again 
on the 9th September ; made large pur- 
chases in October, and on the 25th of that 
month, after a desperate struggle, they found 
it necessary to suspend. They called a meet- 
ing of their creditors on the 26th. Drum- 
mond appeared at the meeting. It turned 
out that theur liabilities had been gradually 
increasing, although there was no evidence of 
extraordinary losses. On 26th October, their 
liabilities amounted to $25,170, and tbeir 
stock to about $10,000. At the meeting of 
the creditors Drummond could not give any 
satisfactory account of their affairs, and he 
declined to make an assignment till he had 
conferred with his partner, McOwan, who 
was his cousin, and appeared to have been 
most active in the management of the busi- 
ness. They did not seem to have had much 
money on beginning business. Drummond 
put in $2000, and McOwan $1000, which 
Drummond said he never saw anything of. 
After the meeting the plaintiffs thought it 
prudent to have McOwan arrested. The ar- 
rest was apparently made almost simulta- 
neously with the deed of assignment which 
bore date the 25th October. The capias was 
was based on affidavit, and a motion was 
made before Mr. Justice Berthelot to quash 
the capias on the ground that the affidavit 



was insufficient. The Judge was of opinion 
that the affidavit was fully sufficient in law ; 
and although the allegations respecting the 
defendant's secretion of his property were 
chiefly matter of inference, yet upon the whole, 
the facts stated in the affidavit were of such a 
character, that no judge could quash the 
capicu on the ground of insufficiency of alle^ 
gation in the affidavit. The reasons assigned 
in the affidavit were mainly as follows : That 
McOwan had previously secreted his estate,, 
debts and effects ; that although a number of 
his creditors attended the meeting, yet Mc- 
Owan had failed to attend, and kept out of 
the way. His partner, Mr. Drummond, at- 
tended, and failed to give any statements, 
that he represented the assets of their firm to 
be only $10,000, and their liabilities at over 
$27,000, although in the month of April pre- 
ceding, the firm of John McOwan & Go,, re- 
presented themselves to be worth over $14,000 
of a surplus. That neither of the partners 
had shown what had become of their assets, 
although thereto requested, and they had re- 
fused to make any assignment for the benefit 
of their creditors. The affidavit was probably 
made before the assignment was completed* 
These allegations were substantially sustained 
and proved by the evidence. Upon this state 
of affairs, two questions arose : 1st. After a 
man has made an assignmentjof his estate, or 
simultaneously with the making of an assign- 
ment, can he be arrested for secreting his 
property previous to that time? It was 
argued for the defendant that the Insolvent 
Act of 1864 did away with the capias when 
once an assignment had been made. On the 
other side it was contended that there was no 
enactment expressly doing away with the re- 
medy by capias, and in the absence of an 
express enactment, it still existed. It was 
stated that Mr. Justice Berthelot had decided 
that when once an assignment has been made, 
there is no right to capias. His Honour had 
consulted with his colleague and found that 
what he said was, that he did not see much 
use in the capias after the debtor had made 
an assignment, biit he went no further than 
that. He (Mr. Justice Monk) thought the- 
capias had not been done away with, more 
especially in a case like the present where 



August, 1867.] 



THE CANADA LAW JOURNAL. 



39 



the secretion took place previous to the as- 
signmeat. He was clearly of opinion that 
inasmuch as there was no express abolition 
of this remedy by the Insolvent Law, it still 
existed concurrently with the particular pro- 
cedure under that law. The next question 
was, was there any evidence of fraud or secre- 
tion to justify the capias f The affidavit 
stated no particular acts of fraud or secretion j 
it merely alleged the gradual diminution of 
the assets and increase of liabilities. This 
alone would perhaps hardly justify the Court 
in deciding that there had been fraudulent 
secretion ; but there was something more in 
evidence. After Mr. Brown, the assignee, 
bad come into possession of the estate under 
the assignment, he was informed by parties 
who were thoroughly familiar with the facts, 
that there was a considerable amount of pro- 
perty, and this property had actually been 
removed from the defendant's store previous 
to the assignment. Mr. Brown acted on this 
information, and found at the house of one 
Holmes, in St. Joseph street, a large quantity 
of goods which should have been at the store, 
and put into the hanils of the assignee. His 
Honour had no hesitation in saying that this 
was an act of secretion. The whole circum- 
stances were such as to leave no doubt that 
there was systematic fraud, and that there 
must have been considerable abstractions of 
property. The case was clearly made out, 
«nd therefore the petition for discharge must 
be refused with costs. 

Cross & Lunny for the Plaintiff. 

John Popham, for the Defendant. 



LEGAL STATUS OF THE CHURCH OF 
ENGLAND LV THE COLONIES. 

As this subject is one of general interest to 
all denominations, we give the following re- 
port of the speech of Mr. S. Bethune, at the 
last meeting of the Church Society. 

The Chairman having announced that an 
address would next be delivered by Strachan 
Bethune, E6q.,Q.C., Chancellor of the Diocese 
of Montreal, on " The progress, present state, 
** and prospects of the Colonial Church, with 
•*^ special reference to the Church in Canada," 

Mr. Bethune rose, and after some intro- 



ductory observations respecting the difficulty 
of treating so comprehensive a theme within 
the limits of a brief address, proceeded to 
say: — The first Colonial Bishopric created 
was that of Nova Scotia, and that not 
very far back, namely, in the year 1787. 
At the beginning of the present century the 
Colonial Church could only boast, through- 
out the whole world, of two Bishoprics. At 
the end of the first quarter of the present cen- 
tury, they could only claim four j at the end 
of the second quarter, in 1850, this number 
had been increased to twenty-one, and at this 
day they claimed to have forty-two. If suc- 
cess were to be measured by numbers, it 
would be imagined that the Church must 
have been extremely successful} but unfor- 
tunately you are aware that notwithstanding 
all the efibrts to plant the Church through- 
out the Colonies, difficulties have arisen of 
late years which have thrown a cloud over 
that Colonial Church. I allude of course to 
the decisions of the Privv Council in the now 
famous cases of Long and Colenso. In the 
first of these cases, which may be considered 
as the leading one, the Judicial Committee 
decided that letters patent issued by the 
Crown, after the establishment of a constitu- 
tional Government in a colony, are ineffec- 
tual to create any ecclesiastical jurisdiction. 
From the decision in this case and the one 
of Colenso which followed, it was generally 
considered that, as it was held that the Me- 
tropolitan Bishop of Capetown had no juris- 
diction under the letters patent appointing 
him such, because of the want of ecclesiasti- 
cal jurisdiction in the Crown in the colony of 
the Cape of Good Hope, so also, for the same 
cause, the letters patent appointing Colenso 
to be Bishop of Natal equally failed to confer 
ecclesiastical jurisdiction upon that function- 
ary. And yet, in the recent case of Colenso 
against the Trustees or Treasurers of the 
Colonial Bishoprics fund, for the recovery of 
his salary as Bishop of Natal, and which had 
been withheld from him on the ground that 
his appointment under letters patent confer- 
red no territorial jurisdiction whatever. Lord 
Romilly decided, that notwithstanding any- 
thing fhat had been determined by the Privy 
Council, Colenso was de facto Bishop of 



40 



THE CANADA LAW JOURNAL. 



[Anguily 1867. 



Natal, and for that reasoD entitled to recover 
the amount of hie salary. In Canada, bow- 
eyer, the position of the Church was, happily, 
Tery different. The first Colonial Bishopric, 
as I hare already said, was that of Nova 
Scotia, from which we had started in this 
country. Originally the Church in Canada 
was so insignificant that it was served from 
the Bishopric of Nova Scotia and formed part 
of its Diocese. This continued till 1 7 93 when 
the Bishop of Quebec was consecrated; in 
1839 the Bishopric of Toronto was added by 
taking off a part of the Diocese of Quebec, 
and in 1850 our own Diocese was created by 
letters patent. Our position was different 
from that of most of the other Colonies. In 
the Act of 1791, in which provision was made 
for the better government of the Province, 
reference was specially made to the patent of 
the Bishop of Nova Scotia, and all his rights 
and privileges were specially reserved to him 
and to his successors. Then we pass on to 
the Diocese of Quebec, created in 1793, suc- 
ceeding in direct line to the Diocese of Nova 
Scotia, and succeeding to all the powers of 
the Bishop of Nova Scotia, and then to the 
patents of the Bishops of Quebec, Toronto 
and Montreal. With respect to the patents 
of the three bishops last named, it is enough 
to say that their pateuts have been repeatedly 
referred to and recognized in Provincial Acts 
of Parliament, and have to all intents and 
purposes been amply confirmed by actual 
and positive Provincial legislation. The next 
step in the progress of the Church in Canada 
was the passing of the act in 1857 which au- 
thorized the bishops, clergy and laity in this 
Province to assemble in Synod. The Dioce- 
san Synods were immediately organized, and 
very soon after the Bishop of Huron was 
elected under the provisions of that act. The 
act being a new one, and all of us in this 
country and in England being accustomed to 
the issue of patents, the Bishop of Huron 
went to England, and there received the con- 
firmation of his appointment by Royal letters 
patent, and was consecrated in the usual 
form. Not many years after, a separate dio- 
cese was created^that of Ontario; and the 
Bishop of Ontario having been elected by the 
Synod of the Diocese of Toronto, out of which 



the new diocese was formed, doubts had 
b^un to be entertained in England, and in- 
stead of a patent being issued, a simple man* 
date from the Queen was sent out to the Me- 
tropolitan Bishop of Canada^ directing him to 
proceed to the consecration of the Bishop of 
Ontario. In this there was a complete de- 
viation from the old practice. Not only was 
the Bishop of Ontario consecrated in this 
country by our own Metropolitan, and on a 
simple mandate from the Queen, but the oath 
he took on that occasion was obedience to the 
Metropolitan of Canada and not to the Arch- 
bishop of Canterbury. In the same way, 
when the vacancy occurred in Quebec, his 
Lordship now presiding was consecrated 
Bishop under simple mandate for the Crown, 
taking the same canonical oath that the 
Bishop of Ontario had previously taken. 
Recently, another election, that of Coadjutor 
Bishop of Toronto, had taken place in this 
country. The appointment was forwarded 
to Her Majesty for confirmation. The docu- 
ment reached England while the Metropoli- 
tan was there, and attention having again 
been drawn to the subject. Lord Carnarvon 
said, that having consulted the law ofiScers 
of the Crown, her Majesty was advised that 
her jurisdiction in these matters in Canada 
had entirely ceased, and that the Metropoli- 
tan of Canada might proceed to the consecra- 
tion of the Bishop of Niagara without further 
authority. Accordingly, the Metropolitan 
had issued an order to the Bishop of Toronto 
to proceed without delay (and with the as- 
sistance of two or more bishops) to the con- 
secration of the Bishop of Niagara. It will 
thus be seen, from the brief narrative I have 
given of the progress and present state of the 
Church in Canada, that the Canadian branch 
of the Church of England is now completely 
and forever emancipated from all State juris- 
diction or control whatsoever ; and is left free 
and unfettered in the management of its own 
affairs, including the appointment and depri- 
vation from office of even its highest dignita- 
ries. In its present condition, therefore, the 
Church in Canada has been made to resemble 
what the Church at large was in the very 
earliest ages of Christianity — a church, in all 
respects, acting by its own inherent power, 



Angnsty 1867.] 



THE CANADA LAW JOURNAL. 



41 



and in no way dependent on any extraneous 
or fiireign authority. Such a pogiti(»i was 
indeed a proud one for Canada to occupy, for 
it undoubtedly placed her foremost in rank 
and independence of all the branches of our 
Anglican communion, next after that of our 
great sister branch in the United States of 
America. That the Church in Canada is 
destined, ere long, to play a very prominent 
part in the great efforts now being made to 
secure increased unity and uniformity through- 
out the whole Christian Church, I entertain 
a very strong conviction, and I am confirmed 
in this view by the effect already produced in 
England by the presentation of the address of 
our Provincial Synod to the Convocations of 
Canterbury and York, in which address oc- 
curs this remarkable suggestion : ^' Let all 
the members of our Anglican Communion 
throughout the world have a share in the 
deliberations for her welfare, and be per- 
mitted to have a representation in one general 
council of her members gathered from every 
land." Cheering as the prospects of our own 
particular branch of the Church undoubtedly 
are, I am free to admit that the disjointed 
condition of the other Colonial branches does 
not present so &ir a picture, nor indicate so 
bright a hope of ultimate success. But when 
we reflect on the terrible struggles of the 
American branch of the Church of England 
during the progress of that gigantic revolu- 
tion which wrested from Great Britain her 
old thirteen colcmies, and for a considerable 
time after its consummation, — when we bear 
in mind that until the year 1784, when Bishop 
Seabury was consecrated to be their first 
Bishop, they were wholly without a pastoral 
head, and were indeed well nigh prostrate 
and overvi helmed, — and when, from such 
comparatively recent beginnings, we see a 
Church of the dimensions and influence of 
that which is now so firmly established in 
the United States, we cannot but confidently 
hope that God, in His all wise Providence, 
will speedily deliver our Colonial brethren 
from their present sad and deplorable condi- 
tion. And, for my own part, I cannot but 
fhink that the Church will ere long prove 
itoclf entitled to that character of stability so 
eloquently ezpfessed by the immortal Burke : 



''Her fortifications, her walls and her has- 
tions are constructed of other materials than 
of stubble and of straw. They are built of 
the strong and staple matter— of the Gospel 
of liberty. She has securities not shaken in 
any single battlement, in any single pin- 
nacle.'' 

But, it has been said, that as we are now 
separated from the controlling power of the 
Church in England, we have ceased to belong 
to that Church. This proposition I entirely 
dissent from. All that has been done is to 
separate us from the jurisdiction or control 
of the Crown as the supreme head of the 
Church of England. Suppose, then, that for 
any cause a like separation should occur in 
England itself, would any one seriously con* 
tend that the Church was less the Church of 
England than it was before? Undoubtedly 
not. Why, then, should only a branch of 
the same church, with Bishops having regu- 
lar succession from the Bishops of the Church 
m England, using the same Liturgy, acknow- 
ledging the same ordinances, professing the 
same faith and doctrine, and maintaining the 
same discipline, be less an integral portion of 
the Church of England ? For myself, I can- 
not see in what the distinction claimed for 
can consist, and I therefore maintain — and I 
trust shall always have reason to maintain — 
that we are verily and indeed an integral por- 
tion of the dear old Church of England. In 
bringing these remarks to a close, I cannot 
better do so than in the eloquent language of 
one of the ablest of the American Church his- 
torians, when alluding to the separation that 
took place at the time of the revolution : 

'' No violent disruption of the sacred bond 
took place. The daughter glided from the 
mother's side because in the allotment of 
Providence she had been led to maturity and 
independence, but the spiritual reunion, the 
union of faith, of worship, and of discipline 
was undestroyed ; and God grant that it may 
prove indestructible." [Hear, hear, and 
cheers.] 



— ^Mr. Justice Cabon, on€ of the Codifica- 
tion Commissioners, having resumed his seat 
as a judge of the Court of Queen's Bench, Mr. 
Justice MONDELBT has returned to the Bench 
of the Superior Court at MontrefU. 



42 



THE CANADA LAW JOURNAL. 



[August, 1867. 



THE U. 8. JTJDICLiRY. 
{Continued from page 24.) 

This judiciary, therefore, on which we have 
relied, is not, in its best state, bejond danger. 
It is capable of great misuse, even under the 
<i\osk of subordination and submission to 
principle. Honestly and conscientiously ad- 
ministered, it is conservatiTe in its influence, 
s,n asylum for the oppressed citizen, a refiige 
to which the injured and alarmed may fly 
with confidence. It may be laughed at for its 
old-fashioned adherence to the books, for its 
ties to feudal absurdities, for its weakness for 
precedents, for its want of a progressive and 
venturous spirit ; but it has the confidence of 
«yery citizen. Angry passions submit to its 
judgments, and fear and despair never enter 
within its doors. In all the jangling and dis- 
<K>rd of weak and ill-contrived machinery of 
government, this is the balance-wheel which 
adjusts and harmonizes what, but for it, 
would be wholly unmanageable. 

Put this power into unprincipled hands, 
and what shall we have ? The balance-wheel 
will become a contrivance for accelerating the 
ruin of the system. At first under a cloak of 
submission to legal theory, then without any 
-cloak at all, private revenge, personal out- 
rage, corrupt contrivances, will have full 
sway. The bench will be the tool of a party ; 
but even this, bad as it can be, will not be the 
worst. Party ties are strong, but the lure of 
gain is stronger. To the unprincipled poli- 
tician no sympathy or aflinity avails against 
the hunger for corrupt acquisition. Those 
who fight and wrangle at the polls with a 
fierceness which seems as if it never could 
admit of reconciliation, are natural conspira^ 
tors to cheat and defiraud. Legislative rings 
are most formidable when they are combina- 
tions of both parties. The unscrupulous 
judge will become the bully of dangerous or- 
ganizations, the tool in power, ever ready and 
reckless with process to suit the emergency. 
The warrant and attachment will become as 
formidable to our liberties as they could be in 
the hands of the veriest tyrant ; and property 
and morality will have to fly, or come in with 
violence, and right the state by revolution. 

Though, while one state has been follow- 



ing another in making the judiciary elec- 
tive, the change has been the cause of a most 
serious anxiety to impartial and reflective 
minds; though it is a system necessarily 
fraught with danger, and sooner or later the 
results just pictured must, perhaps, happen, 
it is a very interesting subject for reflection 
by what causes these results have been so for- 
tunately postponed. Certain it is that the 
downward tendency of this department has by 
no means kept pace with that of the others. 
While legislatures have become, as a rule, cor- 
rupt, the bench has been measurably decent 
and respectable. The stream of justice has 
run with comparative purity. Reports of new 
cases may, perhaps, not be of such ripe 
authority as those of the old; political ques- 
tions may have disturbed judicial harmony ; 
patronage may have demoralized ofi&cial tone 
and influence, and what the English attorneys 
style '' hugging the judges " may not have 
been sufficiently discouraged ; nepotism may 
have passed the limits of good taste and judg- 
ment ; prejudices, tempers, weaknesses, or ec- 
centricities may have been permitted to appear 
so decidedly that the lawyer has been tempted 
to adroitness in picking his judge for his case ; 
*but in the main we have been fortunate. The 
evils of the elective system have certainly ne- 
ver yet equalled our fears. 

What are the causes of this peculiar safety 
of the judiciary ? Does the elevation of the 
lawyer to this high and prominent position lift 
him above human infirmities and temptations? 
Does he acquire a nature difierent from that 
which he had in the busy walks of his pro- 
fession ? Certainly not. He has, perhaps, 
obtained the place by that personal exertion 
which is now the rule with all candidates for 
office. He may have had his gloves off. and 
his feet in the mire, and been down with the 
lowest of the low, where election frauds are 
plotted, and the roughs are hired to carry 
them through. He is affected by all the after- 
births of such work. He feels the bondage of 
a debt to the vile, and dreads the worse than 
curses which reward the ungrateful politician. 
He knows the power of the dangerous classes 
who come before him, — the fierceness of their 
unscrupulous antagonism, — how long their 
vengeance waits, — how every session of his 



August, 1867.] 



THE CANADA LAW JOURNAL. 



43 



court may be pregnant with effect upon that 
daj when he is to ask for a re-election. li he 
has strength to resist, it is not from want of 
perception, it is not from force of character, it 
is not from indifference to results. 

From whatever cause it may arise there is 
a popular reverence for the bench, which per- 
vades all classes, and will survive much politi- 
cal degradation. Th^ practice of the law is an 
'^ art and mystery,'' and those who are enga- 
ged in it get the benefit of a respect for the ma- 
chinery they use, if not for themselves. An 
absurd result of this very respect is the taunt 
80 often flung in our faces that the lawyer is 
in league with the devil. It if the layman's 
bitter admission of his own ignorance and in- 
feriority. With that communion with the 
wisdom of ages which these well-known books 
afford ] with that power to put in motion pro- 
cess which cannot be resisted; with the un- 
known significance of those motions granted 
or denied, on which such important results 
seem to turn ; with that singular cordiality 
between the brethren at the bar, who in the 
next moment are battling d Voutrance; with 
that immediate deference to decision which in 
other places would lead to suspicion of indif- 
ference or treachery ; with a thousand thin^ 
that he sees and hears, the client has none of 
the ordinary relations of intelligence. A law- 
suit is a game in which he is deeply interested, 
but which he does not understand. No won- 
der that he has a respect, much of which is 
fear, for such a system ; and at the head of 
that system is the judge, lifted above all 
others, protecting the dignity of his calling, 
moderating excitements, strong behind his 
power of punishment, with the last word in 
every matter, and that word final for the time. 

The reverence of years thus acquired is not 
80 easily overthrown. It is endangered by our 
habits and manners ; its gloss has been tar- 
nished by our elective system ] by that fami- 
liarity between candidate and constituent, 
which only the politician understands; by the 
very asking for offi e, and using the common 
means of getting it; but it still exists in the 
mind of the citizen. A singularly strong 
proof of this is presented by the fact, that, 
in the midst of the most violent contests, 
when all around him party lines are drawn I 



with the utmost strictness, and proscription 
is inflexible, an honest judge is often re- 
elected by acclamation. It is the living 
up to this appreciation of the community 
that tends to support the judge, and give 
him power to resist evil influences. In the 
mere calculation of majorities, if he chooses 
to descend to that, — ^the balancing of poli- 
tical hazards in view of the time when he 
is next to come before the people, he can- . 
not be ignorant that, though in candidates 
for other ofiQces, vice and even crime are 
often recommendations, to him the greatest 
danger of all is to throw himself out of 
the region of decency. 

But he has other aids in his 8truggle» 
against temptation, or rather his office has 
other protections against disgrace. The train- 
ing of the bar is a strong conservative influ- 
ence. It is less so than it was under the more 
thorough and laborious course which was 
prescribed in that country from which we took 
our common law ; but even here, superficial 
as it is, it has strong power to shape and 
mould the character. From the time when 
he first opened the pages of Blackstone, at the 
commencement of his clerkship, to the time 
when this step of his ambition is reached, his 
mind has been filled with dreams of rivalling 
men who rose by honorable exertion j heroes 
of the bar of incorruptible lives ; men lifted 
mainly by their own brethren; men who 
passed through all professional ordeals, first 
in integrity as well as power, and who came 
to the bench ripe in everything that could win 
esteem. Maximsof high tone, legends of pro- 
fessional pride and dignity, stories of battles 
for professional right, and manly struggles for 
professional pre-eminence, hours with asso- 
ciates of the same dreams and the same aims, 
a legal atmosphere, legal instincts, these work, 
together in the lawyer's training. If what is 
received falls upon proper ground, if it grows 
with wholesome growth, it is easy to see how 
it may lift the learner to a new standard, and 
imbue him with principles from which he 
cannot break away. The well-trained lawyer 
receives a moral momentum in a course from 
which he cannot be turned without violence 
to a thousand ties and associations. 

To one who has been rewarded by its best 



44 



THE CANADA LAW JOURNAL. 



[August, 1867. 



honors, lifted to its highest place, the scorn 
of the bar must be intolerable. Its members 
were once more united than they are now. 
By want of association they have lost power 
and influence. But as it is, no one who has 
ever been of it can stand up against its con- 
tempt. The desire to retain its esteem is no 
mean suppozt to the judge. The most of its 
members are brave and manly, far above 
mean sycophancy to the dispenser of patron- 
age, and though patient and forbearing, slow 
to action and willing to forgive, they are ready 
«nd able, when the crisis comes, to speak with 
an emphasis which cannot be treated lightly. 
If an erring judge is capable of disregarding 
such a rebuke; if neither the training to 
which he has submitted, the pride of his 
science, or the respect of his brethren, can 
influence him for good, he is vile indeed ; a 
fitting tool for the enemies of all law and de- 
cency. 

To secure the safety of the judiciary, there- 
fore, the candidate for the bench must be im- 
bued with the learning of the bar, with its 
spirit of fraternity and subordination, with its 
legends and instincts, its confidence in its own 
<^ganization, the desire which each member 
has for the respect of all the rest ; and such ft 
candidate is to be found only among those 
who lead in learning and integrity. 

Heretofore the judges have, by a sort of 
common consent, been chosen from among 
practising lawyers. It might have been other- 
wise, however. Even in those localities in 
which it is required that candidates for the 
bench shall be taken from the bar, it would 
be easy for designing politicians to evade the 
rule. Our communities are full of men who 
have been admitted to practice, but who have 
been driven from it, or drawn away by other 
pursuits, and have lost all professional tone 
and all professional acquirement. From 
among these, candidates might be sought by 
those who desire a corrupt and subservient 
judiciary, and we should lose all those 
grounds of reliance which have just been 
enumerated. 

But from a singular deference to the com- 
mon sense of the community it has been ge- 
nerally conceded, if not by expression, by ac- 
tion, that this office is to be treated differently 



from others. In the midst of Ihe most excit- 
ing political struggles, in which, for all other 
purposes, the lowest agencies have been at 
work, the bench has been rescued from con- 
tamination by being left in the hands, mainly, 
of the bar. The politician has drawn off, in a 
measure, from this field, and surrendered it to 
the profession most directly concerned and in- 
terested j and it is to the credit of that profes- 
sion that in exercising this duty, it has been 
lifted in the main, far above the considerations 
that involve themselves with all other portions 
of the political struggle. 

However we may turn, then, with disgust 
fh>m other fields of political contest, let us not 
surrenda* our rights here. Our interest and 
our duty unite to require vigilance in these 
elections. With the bench as d^raded as the 
legislature, what are the privileges and honors 
of the bar worth? When the day shall come 
in which the client in selecting his lawyer 
shall do so because he is the son of a judge, 
or helped a judge into office, or is his friend, 
&vorite, or tool; when learning shall be as 
nothing before unscrupulous influence ; when 
the highest skill shall be shown in picking the 
judge for the case, and moulding him by 
&droit manipulation ; when learning shall go 
down before trick and cunning, and honor 
and integrity shall be at a discount ; when 
the judge shall drink with the politician, and 
spend his nights with the gambler and de- 
bauchee ] when libraries shall become useless, 
and our three years' training a waste of time; 
when roughs shall take out licenses to prac- 
tise, and jostie and threaten us with impunity 
in the very halls of justice, who that has any 
pride or decency will practise himself or rear 
his child to the bar? All these things may 
be near if we shrink from the struggle, or for- 
get, among the cares and emoluments of prac- 
tice, the dangers to which we are exposed. 

But there is another motive which should 
operate with each one of us. For ages this 
profession of ours has been sacredly guarded 
and preserved. Through all perils it has been 
b(»*ne along bravely, firmly, suooessftilly. 
High maxims have sustained its character 
and its jHrivileges. Instances of dishonor have 
been to few as to serve only as a wholesome 
contrast. Shall we neglect the trust commit- 



Angnfit, 1867.] 



THE CANADA LAW JOURNAL. 



45 



ted to U8? Sliall we, from fear or despair, 
falter in a duty so manifest? Shall we hand 
the profession down to our children disgraced 
and degraded? 

To avoid such a result we should be more 
united. Some stronger bond should bind us 
to one another for purposes of influence and 
protection. An association of lawyers, pro* 
perly organized, would be a power in the com- 
munity of no mean importance, and always a 
power^for good. No apostle of reform, no lover 
of his profession, no one who is anxious for 
his country's honor and permanence, can have 
a better mission than this, to unite the bar, 
and give it its deserved weight in the commu- 
nity. 



DIGEST OF LAW COMMISSION. 

FIB3T REPORT OF THE COMMISSIONERS. 

To the Qaeen^s most HxceUent Majesty, 
We, your Majesty's Commissioners ap- 
pointed *' to enquire into the expediency of a 
Digest of the law, and the best means of ac- 
complishing that object, and of otherwise 
exhibiting in a compendious and accessible 
form the law as embodied in Judicial Deci- 
sions," humbly submit to your Majesty this 
our first report. 

I. — By the term Law, as used in your Ma- 
jesty's Commission, we understand the Law of 
England, comprising the whole Civil Law, in 
whatever Courts administered, the Criminal 
Law, the Law relating to the Constitution, 
Jurisdiction, and Procedure of Courts (in- 
cluding the Law of Evidence), and Constitu- 
tional Law. 

In each of these divisions are comprised 
Laws derived from three distinct sources : 

1. The first source is the Common Law, 
which consists of customs and principles, 
handed down from remote times, and accepted 
from age to age, as furnishing rules of legal 
right. 

2. The second source is the Statute Law, 
which derives its authority from the Legisla- 
ture. 

3. The third source is the Law embodied 
in, and to a great extent created by Judicial 
Decisions and Dicta. These, indeed, as far 
as they have relation to the Common Law 



and Statute Law, are not so much a source of 
law, as authoritative expositions of it \ but, 
with respect to doctrines of Equity and rules 
of procedure and evidence, they may often be 
regarded as an original source of Law. 

That serious evils arise ftaoi the extent 
and variety of the materials, from which the 
existing law has to be ascertained, must 
be obvious from the following considera* 
tions : — 

The records of the Common Law are in 
general destitute of method, and exhibit the 
Law only in a fragmentary form. 

The Statute Law is of great bulk. In the 
quarto edition in ordinary use, known as 
Ruffhead's, with its continuations, there are 
forty-five volumes, although (particularly in 
the earlier period) a large quantity of matter 
is wholly omitted, or given in an abbreviated 
form, as having ceased to be in force. The 
contents of these volumes form one mass, 
without any systematic arrangement, the Acts 
being placed in merely chronological order, 
according to the date of enactment, in many 
cases the same Act containing provisions on 
heterogeneous subjects. A very large portion 
of what now stands printed at length has 
been repealed, or has expired, or otherwise 
ceased to be in force. There is no thorough 
severance of effective from non-effective enact- 
ments, nor does there exist in a complete form 
any authoritative index, or other guide, by 
the aid of which they may be distinguished » 
Much, too, contributes to swell the Statute 
Book, which is of a special or local charac- 
ter, and cannot be regarded as belonging to 
the general Law of England. 

The Judicial Decisions and Dicta are dis 
persed through upwards of 1300 volumes, 
comprising, as we estimate, nearly 100,000 
cases, exclusive of about 150 volumes of Irish 
Reports, which deal to a great extent with 
Law common to England and Ireland. A 
large proportion of these cases are of no real 
value as sources or expositions of Law at the 
present day. Many of them are obsolete ] 
many have been made \iseless by subsequent 
statutes, by amendment of the Law, repeal of 
the statutes on which the cases were decided, 
or otherwise; some have been reversed on 
appeal or overruled in principle; some are 



46 



THE CANADA LAW JOURNAL. 



[August, 1867. 



inconsistent with or contradictory to others ; 
many are limited to particular facts, or special 
states of circumstances furnishing no general 
rule ; and many do no more than put a mean- 
ing on mere singularities of expression in in- 
struments (as wills, agreements, or local Acts 
of Parliament), or exhibit the application in 
particular instances of established rules of 
construction. A considerable number of the 
cases are reported many times over in differ- 
ent publications, and there often exist (espe- 
cially in earlier times) partial reports of the 
same case at different stages, involying much 
repetition. But all this matter remains in- 
cumbering the Books of Reports. The cases 
are not arranged on any system : and their 
number receives large yearly accessions, also 
necessarily destitute of order; so that the 
volumes constitute (to use the language of 
one of your Majesty's Commissioners) ^' what 
can hardly be described, but may be de- 
nominated a great chaos of judicial legisla- 



)»• 



tion. 

At present the practitioner, in order to form 
an opinion on any point of Law not of ordi- 
nary occurrence, is usually obliged to search 
out what rules of the Common Law, what 
Statutes, and what Judicial Decisions bear 
upon the subject, and to endeavor to ascertain 
their combined effect. If, as frequently hap- 
pens, the cases are numerous, this process is 
long and difficult; yet it must be performed 
by each practitioner, for himself when the 
question arises ; and in some cases, after an 
interval of time, it may have even to be re- 
peated by the same person. Without trea- 
tises, which collect and comment on the Law 
relating to particular subjects, it is difficult to 
conceive how the work of the Legal profession 
and the administration of Justice, which 
greatly depends on it, could be carried on; 
but, however excellent such separate treatises 
may be, they do not give the aid and guid- 
ance that would be afforded by a complete 
exposition of the Law in a uniform shape. 

A digest, correctly framed, and revised from 
time to time, would go far to remedy the evils 



* Speech of the Lord Chancellor (Lord Westborj) 
on the Bevision of the Law. fioaso of Lords, 12th 
June, 1868. Stevens and Norton. Page 8. 



we have pointed out. It would bring the mass 
of the Law within a moderate compass, and 
it would give order and method to the consti- 
tuent parts. 

For a Digest (in the sense in which we un- 
derstand the term to be used in your Majesty's 
Commission, and in which we use it in this 
Report) would be a condensed summary of 
the Law as it exists, arranged in systematic 
order, under appropriate titles and subdi- 
visions, and divided into distinct articles or 
propositions, which would be supported by 
references to the sources of Law whence they 
were severally derived, and might be illus- 
trated by citations of the principal instances 
in which the rules stated had been discussed 
or applied. 

Such a Digest w«uld, in our judgment, be 
highly beneficial. 

It would be of especial value in the mak- 
ing, the administration, and the study of the 
Law. 

When a necessity arises for legislation on 
any subject, one of the principal difficulties, 
which those who are responsible for the fram- 
ing of the measure have to encounter, is to 
ascertain what is the existing law in all its 
bearings. The systematic exposition, in the 
Digest, of the Law on the subject, would en- 
able the members of the Legislature generally, 
and not merely those who belong to the Legal 
profession, to understand better the effect o 
the legislation proposed. And there would 
be this further benefit — that new laws, when 
made, would, on periodical revisions of the 
Digest, find their proper places in the system, 
and would not have to be sought for, as at 
present in scattered enactments. 

The Digest would be of great use to every 
person engaged in the administration of the 
Law. All those whose duties require them 
to decide legal questions in circumstances in 
which they have not access to large libraries 
or other ample sources of information, would 
find in the Digest a ready and certain guide. 
Counsel advising would be spared much pains 
in searching for the Law in indexes, reports, 
and text books ; and Judges would be greatly 
assisted as well in hearing cases as in prepar- 
ing judgment. 

The Digest would be most advantageous in 



Angast, 1867.] 



THE CANADA LAW JOURNAL 



4r 



the etudj of the Law ; for it would put forth 
legal principles in a form in which they would 
be readily appreciated, contrasted, and com- 
mitted to mind, and thus substitute the study 
of a system for the desultory contemplation 
of special subjects. 

It is not unreasonable to expect that this 
condensation and methodical arrangement of 
legal principles would have a salutary effect 
upon the Law itself. It would give the ready 
means of considering, in connection with one 
another, branches of the Law which involve 
similar principles, though their subject mat- 
ters may widely differ. It would thus bring 
to light analogies and differences, and by in- 
ducing a more constant reference to general 
principles, in place of isolated decisions, have 
a tendency to beget the highest attributes 
of any legal system — simplicity and unifor- 
mity. 

The persons charged with the framing of 
the Digest might be also intrusted with the 
duty of pointing out, from time to time, the 
conflicts, anomalies, and doubts, which in the 
course of their labors would appear. Thus 
the process of constructing the Digest would 
be conducive to valuable amendments of the 
Law. These amendments would be embodied 
in the Digest in their proper places. 

Moreover, such a Digest will be the best 
preparation for a Code, if at any future time 
codification of the Law should be resolved on. 

But great as are the advantages to which 
we have referred as likely to flow from the 
formation of a Digest of Law, the argument 
for it may, we think, be rested even on the 
higher ground of national duty. Your Ma. 
jesty's subjects, in their relation towards each 
other, are expected to conform to the laws of 
the State, and are not held excused on the 
plea of ignorance of the Law, from the con- 
sequences of any wrongful act. It is in these 
laws that they must seek the provisions made 
for their liberty, for their privileges, for the 
protection of their persons and property, for 
their social well-being. It is, as we conceive, 
a duty of the State to take care that these 
laws shall, so far as is practicable, be ex- 
hibited in a form plain, compendious, ani ac- 
cessible, and calculated to bring home actual 
knowledge of the Law to the greatest possible 



number of persons. The performance of thi» 
duty — a duty which other countries in ancient 
and modern times have held themselves bound 
to recognise and discharge — has, in this coun- 
try, yet to be attempted. 

On these grounds we report to your Majes- 
ty our opinion that a Digest of Law is expe- 
dient. • 

II. — Having arrived at this conclusion, we 
proceed to the consideration of the further 
inquiry which your Majesty has been pleased 
to intrust to us — namely, the best means of 
accomplishing a Digest of the Law. 

It may be proper here lo advert to what has 
recently been done in the State of New York. 
The laws of that State (as in other States also 
of the Union) rest generally, for their basis, 
on those of this country as they existed when 
the States declared their independence. Gases 
decided in our Courts before that time are 
still regularly cited before American tribu- 
nals, as they are in Westminster Hall; and, 
indeed, the Reports of our Courts, up to the 
present day, are largely cited and relied on in 
argument in American Courts. The work 
which has been lately accomplished by the 
Commissioners for framing Codes for the State 
of New York is, in form, a series of Codes, 
laying down prospectively what the Law is to 
be, two of which Codes have already received 
the sanction of the Legislature. But, as a 
preparatory step to the formation of these 
Codes, a complete collection— or what, after 
great examination, the Commissioners be- 
lieved to be a complete collection — under ap- 
propriate heads, of the Law on each subject, 
was formed by gentlemen employed for the 
purpose under the Commissioners.* 

We do not desire to conceal that the task 
of forming such a Digest as we contemplate 
would necessarily require a considerable ex- 
penditure of time and money, though we are 
strongly of opinion that the benefits that 
would result from it would amply compensate 
for any such expenditure. 

We think it clear that a work of this nature 



* Mr. David Dadlej Field, to whose exertions the 
State of New York is mainlj indebted for tills impor* 
tant work, was so good as to attend one of onr meet- 
ings, and to give ns ftiU information respecting the 
course which had been pursued. 



48 



THE CANADA LAW JOURNAL. 



[August, 1867. 



(regard being had especially to the importance 
of its carrying with it the greatest weight) 
could not be accomplished by private enter- 
prise, and that it must be executed by public 
authority and at the national expense. 

With respect to the means of accomplish, 
ing it, we have considered various plans. Any 
plan must, we think, involve the appointment 
of a Commissioner or Body for executing or 
superintending the execution of the work. It 
is obvious that, whatever arrangement is 
adopted, a certain number of functionaries 
must be employed, at a high remuneration, in 
the capacity of commissioners, assistant com- 
missioners, or secretaries, and that there must 
be a considerable expenditure on the services 
of members of the Legal profession, employed 
from time to time in the preparation of the 
materials to be ultimately moulded into form 
by or under the immediate supervision of the 
Commission or responsible Body. 

We are anxious to avoid any recommenda- 
tion that would involve the necessity ot im- 
mediate outlay on a large scale j and we there- 
fore recommend that a portion of the Digest, 
sufficient in extent to be a fair specimen of 
the whole, should be in the first instance pre- 
pared, before your Majesty* s Government is 
committed to an expenditure which will be 
considerable, and which, when once begun, 
must continue for several years, if it is to be 
at all efficacious. 

We are not authorized, by the terms of 
your Majesty's commission, to undertake the 
execution or direction of such a work, but we 
are of opinion that it might be conveniently 
executed under our superintendence. 

If this should be your Majesty's pleasure, 
we humbly submit Uiat the necessary power 
should be conferred on us to enable us to 
carry this recommendation into effect, and 
that means should be furnished to us of em- 
ploying adequate professional assistance for 
this purpose. 

In the progress of the work thus done, 
light will be thrown on the question of the 
best organization of the Body to be consti- 
tuted for the completion of the Digest. A fair 
Mtimate will be formed of the time that will 
be required for the whole. Difficulties, not 



now foreseen in detail, will doubtless be en- 
countered, and the best way to overcome them 
will be ascertiuned. The solution of questions 
which have already occurred to us will be at- 
tained, or at any rate promoted. Some of 
these questions are the following: What is 
the best mode of dealing with Statute Law in 
the Digest ? How should conflicting rules of 
Law (if any), and doubts that have been au- 
thoritatively raised respecting particular cases 
or doctrines of Law, be treated ? And what 
provision should be made on the important 
point of the nature and extent of the autho- 
rity which the Digest should have in the 
Courts, and how that authority can best be 
conferred on it ? 

We propose, in this our First Report, to 
limit ourselves to the conclusions and recom- 
mendations we have now stated. The con- 
sideration of other questions arising from the 
terms of your Majesty's Commission, and a 
fuller treatment of some of the subjects here 
adverted to, we reserve for subsequent Re- 
ports. 

All which is humbly submitted to your 
Majesty's gracious consideration. 

Dated this 13th day of May, 1867. 

Crakworth. 

Westbury. 

Cairns. 

James Plaisted Wilde. 

Robert Lowe. 

W. P. Wood, 

George Bowter. 

RouNDELL Palmer. 

John George Shaw Lefetre. 

T. Erskine May. 

W. T. S. Daniel. 

Henry Thrino. 

Francis S. Reilly. 

— Weekly Notes. 



— The recovery by Mr. Rufus Lord of 
$1,400,000 of bonds stolen in 1865 was effected 
through a New York banking-house, which 
received them from Baring Brothers, of 
London, who had them from a London lawyer, 
a sort of Mr. Jaggers, who forced the guilty 
one, who was his client, to give them up. 



September, 1867.] 



THE CANADA LAW JOURNAL. 



49 



Mt (RmHh i^au; iourttal 



Vol. m. SEPTEMBER, 1867. No. 3. 



THE MARRLA.GE LAWS IN UPPER 

CANADA. 

A case now pending in the Court of Chan- 
dlery of Upper Canada has attracted general 
attention to the state of the marriage laws. An 
4Wtion for alimony was brought by the wife 
against the husband, on the ground of deser- 
tion, and the defence set up was that the al- 
leged marriage of the parties was celebrated 
by the Roman Catholic Bishop of Toronto, 
'without the publication of banns or the pro- 
-curement of a license from the Governor, un- 
der the statute, and such marriage was cele- 
brated privately in the. Bishop's house, with- 
out any witness being present, and after canon- 
ical hours. The aid of the English statute 
known as LordHardwicke's Act, (26 Geo. II., 
-cap. 33,) was also invoked, whereby it is provid- 
ed that marriages celebrated without banns or 
license, shall be deemed clandestine, and shall 
be null and void to all intents and purposes 
whatsoever. The plaintiff sought to avoid this 
defence by setting up that these acts did not 
■apply to Roman Catholics (both parties being 
such in this case, and resident within the dio- 
cese of the Bishop who officiated at the mar- 
riage ceremony) ] that marriage was accounted 
a sacrament by the Roman Church, and, as 
such, being a part of their religion, it was 
preserved to them intact by the stipulations 
made upon the capitulation of Canada, and 
that it was open to that church to regulate 
the celebration of marriage by their own ec- 
clesiastical rules — and at all events, if the 
aforesaid statutes did apply, then the marriage 
was at most only irregular, but not null and 
void. 

The Upper Canada Law Journal^ comment- 
ing on this remarkable case, urges the neces- 
sity of a thorough revision and aiinendment 
of the Marriage Laws by the Confederate 
Parliament. The matters presented to the 
Court for adjudication are whether the mar- 
riage of Roman Catholics by their own Bishops 
is regulated by the Upper Canada Statute, or 



by the French law applicable to the subject, 
which obtained at the time of the cession of 
Canada, or whether, exempt from both, 
Roman Catholics are in this respect a law 
unto themselves. 



WRITS OF ERROR. 



We have deferred till the present month 
the publication of the judgment quashing the 
first Writ of Error, in the case of The Queen 
V. Dunlopj and are now enabled to complete 
the case by the report of the subsequent 
judgment upon the merits. A considerable 
amount of indignation has, it seems to us, 
been lavished unnecessarily upon the action 
taken by the representative of the Attorney- 
General in this matter. The objection raised 
when closely examined, assumes almost a 
purely technical character. It is difficult to 
imagine that the Attorney-General would not 
have been just as much responsible for the 
act of Mr. Ramsay under the circumstances 
as though he bad signed the fiat for the writ 
himself. The subdivision of Lower Canada 
into a large number of Districts has ren- 
dered it almost impracticable for the Attorney- 
General, or Solicitor-General, to be present and 
make a personal inquiry into the propriety of 
signing every writ of error. 

A majority of the judges held the act ot 
Mr. Ramsay to be illegal, and it must there 
fore be assumed that he exceeded his autho- 
rity in signing the fiat without a special 
commission lirom the Crown. But apart 
from the strictly legal bearing of the case, 
if it were necessary to exculpate Mr. Ramsay 
in the matter, it is only necessary to observe 
that although the majority decided against 
the legality of the act, yet the learned 
judge, the execution of whose judgment was 
stayed by the writ of error, was of a contrary 
opinion ; and, further, a majority of the same 
Court have since sustained the second writ of 
error, and held that the judgment in question 
went too far in ordering the immediate de- 
struction of all the powder in the magazine. 

Before the latter judgment was rendered, 
Mr. Ramsay published some remarks upon 
the case, in a letter to the Gazeite, from which 
we subjoin the following extracts : — 



50 



THE CANADA LAW JOURNAL. 



[September, 1867* 



" The question is not alone whether the At- 
torney-General can sign a fiat for a writ of 
error by proxy; bat whether his duties in 
Court can be performed by proxy. In &ct, 
the same question may be raised as to signing 
an information, and has been raised as to 
signing a nolle prosequi. It seems difficult 
to suppose that the one can be done by proxy 
and not the other ; and yet it has been held 
in the case of a nolle prosequi that it may be 
done by proxy. When the thing was ques- 
tioned I shewed, by a tabular statement which 
I then drew up, that the right to enter a nolle 
prosequi had been exercised nearly a himdred 
times in Montreal within the fifteen years pre- 
ceding, and that in not a single instance had 
it been signed by the Attorney-General in 
person ; but always, save in two or three in- 
stances, by the Solicitor-General, by the Clerk 
of the Crown, or by the usual proxy. I 
shewed, moreover, that this had been done by 
the tacit assent of every judge of the Queen's 
Bench and by several other judges, and most 
frequently when Mr. Justice Aylwin was pre- 
siding. Mr. Justice Atlwin explains this by 
saying it was done without his knowledge; 
but this explanation is hardly satisfactory. 
The truth is, the Judges never thought of 
questioning it till they perceived that it could 
be used by the Executive as a check upon 
them. 

The question of the fiat for a writ of error 
is exactly parallel. It has been said that there 
was this distinction, that the power exercised 
by the Attorney-General, being judicial, could 
not be delegated. This is sheer nonsense. His 
power is prerogative, and he exercises it under 
an implied proxy from the Crown. Formerly 
it was granted under the sign manual, but 
that became disused by one or two Attorney- 
Generals singly signing the fiats, and I never 
heard of any jealous judge in England quash- 
ing a writ upon this ground. Is the step taken 
here greater? The Attorney-General never 
prosecutes in person, and yet some one must 
sign these things who knows something of the 
facts. If the Attorney-General is to sign per- 
sonally, he must sign on ^ith of what his 
representative puts before him. Judge Atl- 
win says, I understand, that formerly, here, 
the representative of the Attorney-General 



had a lot of blanks signed by the Attorney- 
General in his despatch, and ready to be ap- 
plied in case of need, and that this avoids the 
difficulty. And what then becomes of the 
intransmissible judicial power of the Attorney- 
General 7 

In matters of information, in the only 
Courts where they are used, they have con- 
stantly been signed by proxy. Indeed, this 
idea of the Attorney-General being unable to 
grant a proxy is a novelty. Once before it 
was questioned whether he had granted it, 
but never whether he could if he wished. The 
case is a curious one, and, as we have the 
advantage of the ^opinion of the law ofiScers 
of the Crown on the point (Mr. Aylwin being 
the Solicitor-General, L. C), I shall briefly 
resume it. The Attorney-General, Mr. Ooden,. 
being absent in England, Mr. Primrose signed 
for him several suits which could only be 
brought '^ in the name of some superior officer 
of the Customs or navy, or by Her Majesty's 
Advocate or Attorney-General. No one ques- 
tioned the right of the Attorney-General to 
give his proxy, but the fact of his having given 
it was doubted, and Mr. Primrose was called 
upon to produce it. This he failed to do, and 
the suits were dismissed. Of this proceeding 
Mr. Primrose complained to the Governor- 
General, who referred the matter to the law 
officers for Upper and Lower Canada; and 
they reported that by the peculiar nature of 
the Admiralty Court the proxy could be de- 
manded, and incidentally they stated their 
opinion '^ as to the conduct of Crown cases 
generally by the Queen's Counsel in the ab- 
sence of the Attorney-Generah" " With ref^ 
erence, however, to the Crown cases generally, 
both in the Vice-Admiralty and other Courts, 
the question raised in the case of the Master 
of the Dumfriesshire is no doubt of great prac- 
tical importance, as the personal attendance 
of Her Majesty's Attorney-General for Lower 
Canada, in all the Courts, is rendered imprac- 
ticable by the judicial organization of these 
Courts into distinct and separate tribunals, 
possessed of equal powers and of the same 
jurisdiction, which they exercise at the same 
time in diflferent and distinct districts." * * * 
" There is no rule of law by which one attor- 
ney may not delegate to another the power of 



September, 1867.] 



THE CANADA LAW JOURNAL. 



61 



acting, and, therefore, of signing acts for him ] 
and there is even an express rule in the Court 
of Appeals Tvhich enjoins upon attorneys re- 
siding out of the City of Quebec to appoint an 
attorney resident there as an agent for them. 
We are not aware of any rule, either in the 
practice of the Courts in England, or in either 
of the sections of this Province, by which the 
Attorney-General, or any other attorney, may 
not delegate to a professional brother the power 
of signing legal proceedings for him and in his 
name. The argument ab inconvenienUj re- 
sulting from the organization of the Courts of 
Law of Lower Canada, would be easily shaken 
by a judicial decision founded upon some 
known rule of law. But if precedents be ad- 
verted to, it will be found that they are in favor 
of the practice of conducting and signing pro- 
ceedings in the name of the Attorney-General 
by other counsel. This practice has been 
sustained, with reference to Mr. Primrose 
himself, by the Court of Queen's Bench at 
Quebec, in the cases of the Queen v. Bonner 
and the Queen v. Petry, and also in the 
District Court of Quebec. We believe that it 
may be said that the practice never has been 
shaken, and has been and is general. With 
reference to the course which obtains in Eng- 
land, we know that in some proceedings under 
the excise laws, at the instance of the Crown, 
the Solicitor of the Treasury is the prosecut- 
ing ofQcer, and his printed name at the foot 
of process has been Tield sufficients^ Signed : 
L. H. Lafontaine, Attorney-General L. C. ; 
Robert Baldwin, Attorney-General U. C. ; 
T. C. Aylwin, Solicitor-General L. C. ; and 
Jas. E. Small, Solicitor-General U. C. The 
Dumfrie88hire,STUART'sVice-AdmiraltyCases, 
p. 245. 

It would seem that this general practice has 
now been shaken by a "judicial decision," but 
on what " knoum rule of law" that decision is 
founded is not so evident. 

It is fit the public should also know that on 
the first application made to me for a writ of 
^rror, I communicated with four of the judges 
on the subject, and they declined to give any 
opinion on the weighty point. I was not, 
therefore, to blafne in giving eflFect to the At- 
torney-General's proxy, provided I used it 
^screetly." 



JUDICIAL CHANGES IN ENGLAND- 
LORD JUSTICE TURNER- 

The long vacation has again brought with 
it several changes in the Judiciary. Last year 
Lord Justice Knight Bruce was, shortly afler 
his resignation, removed by the hand of death ; 
and this summer. Lord Justice Turner hag 
been called away. This learned Judge was 
born in 1798, was educated at Pembroke Col- 
lege, Cambridge, and was called to the bar in 
1822. He was made a Queen's Counsel in 
1840, and from 1847 to 1861 was a member 
of the House of Commons. n the retirement 
of Sir James Wigram in 1851, he was ap- 
pointed Vice-Chancellor, and two years later, 
on Lord Cran worth's becoming Lord Chan- 
cellor, Sir George Turner was proiaoted to be 
Lord Justice of the Court of Appeal in Chan- 
cery, as the colleague of the^late Sir James 
Lewis Knight Bruce, an office which he held 
till his death on the 9th of July, The Lord 
Chancellor has said of him : '* I am sure the 
bar will deeply regret the loss which the public 
and the profession have sustained in the 
death of that most excellent man and upright 
Judge, Lord Justice Turner. The unvarying 
kindness and courtesy which he showed to the 
profession, his devoted application to every 
case that was brought before him, the anxious 
care with which he worked out all his judg- 
ments, and which were always full and satis- 
factory, can never be forgotten; and I am 
quite sure that there is hardly any one con- 
nected with the Court of Chancery, who will 
not feel that he has lost almost a personal 
friend in this most amiable and esteemed man, 
and upright and conscientious Judge." 

Sir John Bolt, the Attorney General, has 
been appointed to the vacancy occasioned by 
the death of Lord Justice Turner; Sir John 
B. Karslake, the Solicitor General, succeeds 
Sir John Rolt as Attorney General ; and Mr. 
Jasper Charles Selwyn, Q.C., a leading mem- 
ber of the Chancery Bar, becomes Solicitor 
General. 

The venerable Dr. Lushington, who has 
so long occupied the position of Judge of the 
High Court of Admiralty, has resigned. He 
was born in 1787, and was made Judge in 
1839. While at the bar, he was one of the 



52 



THE CANADA LAW JOURNAL. 



[September, 1867. 



counsel for Queen Caroline. He has been suc- 
ceeded on the bench by Sir Robert Joseph 
Phillimore, the Queen's Advocate, who has 
been replaced by Dr. Travers Twifls, Q.C. 
The Xaio Times, commending the last appoint- 
ment, says : '^ Nothing can more preserve the 
tone and dignity of the profession, than the 
invariable recognition of the highest clums 
in the dispensation of its honors and emolu- 
ments.'' 



CORRUPTION OF THE BENCH IN THE 
UNITED STATES. 

The following letter, which appeared in the 
Times of August 24, from its New York Cor- 
respondent, shows how rapidly the Bench of 
the neighboring Republic is becoming demor- 
alized by the influences to which it is sub- 
jected. 

New York, Aug. 2. 

The effect of electing Judges by universal 
suffrage, and appointing them for short periods, 
has long been dreaded by that large but power- 
less class of Americans which desires to place 
some limit upon the sway of an eve^encroach- 
ing democracy. The Bench and the Bar have 
alike been degraded, and the courts are al- 
ways full of scandals. Men are placed on the 
Bench not for any ability they have displayed, 
still less on account of their legal attainments, 
but simply as a reward for party services, and 
because they set their sails dexterously to the 
breath of popular opinion. In New York the 
system may be seen in its fullest develop- 
ment; all vicious systems possible under the 
American form of government flourish there 
in unrivalled completeness ; but in every State 
where the Judges are elected by the people, in- 
capacity and corruption are the prevailing 
characteristics of the Judiciary. The founders 
of the Constitution never looked forward to 
such an ascendency of the will of the majority 
as we now witness, but they had their doubts, 
and they wisely placed the Judges of the Su- 
preme Court, and of such interior courts as 
Congress might establish, above the reach of 
popular caprice. Their idea was, as one of 
them expressed it in the Federalist, that the 
Courts of Justice should be considered " as 
the bulwarks of a limited Constitution against 



legislative encroachment." Madison himself 
was opposed to electing Judges by a popular 
vote. The commentators are unanimous in 
commending their opinions, and in deploring 
the tendency of recent times to throw the 
three Departments of the €k>vemment entire- 
ly into the hands of the people. Mr. Justice 
Story says, — 

''Does it not follow that, to enable the Ju- 
diciary to hilfil its functions, it is indispens- 
able that the Judges should not hold their 
offices at the mere pleasure of those whose 
acts they are to check, and, if need be, to de- 
clare void? Can it be supposed for a moment 
that men holding their offices for the short 
period of two, or four, or even six years, will 
be generally found firm enough to resist the 
will of those who appoint them, and may re- 
move them ? " 

I feel that I ought to apologize for quoting 
the words of these exploded authorities ; but 
there was a time when their interpretation of 
the Constitution was respected, and their writ- 
ings still have an interest as historic relics. 

It must be a melancholy sort of satisiactioa 
to the Constitutional party to know that all 
the evils predicted as certain to result from a 
course which enabled the changing majority 
of the hour to gain possession of absolute 
power are now actually experienced. In one 
State they make themselves felt in one way, 
in another State by a different way ', but the 
people have them all before them in various 
shapes. If an example is wanted of the disas* 
trous consequences of electing Judges by un- 
iversal suffrage we have only to refer to New 
York. There not only the Judges, but all the 
officers concerned in the Judiciary, are chosen 
by popular election. An American publica- 
tion of well-known character, the North Ame- 
rican Review, has given an account in its last 
number of the working of this system. The 
statement comes with authority; it enters 
into minute particulars ; and it has not been 
questioned nor denied by any of the persons 
implicated in its charges. A month has 
elapsed since it first appeared, and I have 
watched carefully for some contradiction or 
disproof. Nothing of the kind has been offered. 
Nay, the people seem even to be indifferent to 
the existence of so huge a scandal, and, with 



September, 1867.] 



THE CANADA LAW JOURNAL. 



53 



the exception of the Tribunej which corrobo- 
rates the reviewer's assertions, the press is 
^aite silent respecting it. So that an exposure 
of this kind not only does the parties concern- 
ed no harm, but causes neither surprise nor 
indignation in the public mind, and is looked 
upon as a thing inevitable, and one of the ne- 
cessary fruits of that principle of an unrestrict- 
ed suffrage which appears to grow into favour 
in other parts of the world the more its disad- 
vantages are revealed here. 

It must be understood that there are Judges 
upon the B^nch in New York who are guilt- 
less of the offences described by the reviewer ; 
he admits that fact readily ; and it is only to 
be regretted that he or his publishers had not 
the courage to disclose the names of the per- 
sons whom his accusations specially affect. 
As it is, the innocent suffer for the guilty, 
and such men as Chief Justice Robertson, of 
the Supreme Court, whose integrity is above 
suspicion, are classed with their dishonest 
colleagues by readers who know no better. In 
the same way, it is usual to attack the entire 
municipal government of New York, without 
excepting the Mayor, Mr. Hoffmann, who is 
allowed by all parties to be a gentleman of 
the highest character. 

The reviewer mentions the immense in- 
crease in the foreign population as one cause 
of the degraded state of the Judiciary. He 
believes that there are 100,000 foreign born 
voters in the city to 60,000 native voters, and 
they are " hopelessly degraded by dirt, foul 
air, and drink." ' They always choose the 
worst condidates on the list, such as one of 
their present representatives in Congress, 
whom the writer describes as ^^aman noto- 
rious in the past as a pugilist and a criminal, 
and whose entire claim lo a reformation of 
character consisted in his having given up 
prize-fighting and become the chief of profes. 
fiional gamblers." 

When Judges are chosen by this same class 
of voters any one may guess what character 
the Bench is likely to assume. But another 
cause of their debasement is the patronage 
placed in their hands by the grjeat increase in 
the number of referable causes. The referee 
suffers it to be understood that he is ^'open 
to offers " from the parties seeking a decision. 



and sometimes he manages to pocket $50 or 
$100 a day as his fee. Receiverships are also 
offices of profit to the Judges. A public 
journal of respectable character recently as- 
serted that upon the settlement of a certain 
receiver's accounts the Judge demanded half 
his fees, which amounted to some $10,000. 
Judges of this stamp are as incompetent as 
they are corrupt, and they drag the Bar down 
to their level. Formerly Americans used to 
leave foreigners to make these revelations, 
and abuse them afterwards; now they tell 
the truth themselves, and there is conse- 
quently a better hope of reform. 

Besides taking money as bribes the New 
York Judges will hear counsel ex parte, out 
of court. The North American Review says : 

"It very naturally follows that the Judge 
who will do this is often utterly indifferent to 
the argument in open court } and it also fol- 
lows, in not a few cases, that he pledges his 
decision beforehand. We have known exten- 
sive stock speculations to be conducted on the 
faith of decisions thus promised, and it is not 
to be wondered at if the Judge was strongly 
suspected of having an interest, as he cer- 
tainly had a friend, in the speculation." 

The reviewer gives what he describes as a 
"portrait" of one of the Judges. His know- 
ledge of law is small, but he is naturally 
quick and acute, and except for a habit which 
he has of hearing arguments privately, after 
he leaves the court, he might not be altogether 
a bad Judge. This probably accounts for the 
fact, mentioned by the reviewer, that he some- 
times cuts short a 'Case before it is fairly 
stated. " You can go on," he will say to the 
lawyer who is pleading before him, " all day 
if you like ; but I have decided this case, and 
I never take back a decision." He indulges 
continually in coarse language or profane 
jokes while on the Bench. Once he said in 
open court " that William CuUen Bryant was 
the most notorious liar in the United States. 
On another occasion he referred to the Presi- 
dent (Lincoln) and the Secretary of War as 
" those villains down there." He is greatly 
under the influence of certain lawyers who 
are supposed to share their fees with him. 
"Not long ago," says the reviewer, "certain 
parties having an important affair in litigation 



54 



THE CANADA LAW JOURNAL. 



[September, 1867. 



were privately notified thai if they wished to 
succeed before the Judge they must employ two 
lawyers (neither of them hcmng any claim to 
the business) at a handsome fee,^^ Some 
other metances are given of this man's ini- 
quitous dealings, and then the reviewer pro- 
ceeds to state that the criminal courts are 
little, if any, better than the civil courts. 
" If," he remarks, " we were to relate half 
the rumours which are afloat, and which are 
fully credited, too, by the most intelligent and 
discreet members of the Bar, we should draw 
a picture as appalling as anything to be found 
in the books of the prophets Amos and Mi- 
cah." One Judge (not now on the Bench), 
hefore whom an assault case was brought, 
was asked during the progress of the trial to 
to go with the prisoner and his counsel to 
dinner. He accepted the offer, and found a 
bill for $100 under his plate. He was ^^aston- 
ished," but he literally *< pocketed the afiront" 
and decided in favor of the accused. Thus 
were things pleasantly arranged. Another 
Judge accepted $500 in return for a decision. 
" Within a much more recent period," says 
the reviewer, — 

^^ A man was indicted for a series of enor- 
mous frauds, by which he had made himself 
wealthy. The indictment was quashed for 
some informality, and he openly boasted that 
he knew how to manage the drawing of future 
grand juries so as to secure himself against 
any renewal of the indictment — a boast which 
the failure of all subsequent attempts to indict 
him seems to justify. We are assured, ou 
the most respectable authority, that the judge 
received $10,000 for his decision." 

Most of the judges on the criminal bench 
are described as '' coarse, profane, uneducated 
men.'' One of them was a butcher, another 
a barkeeper : — 

'•' As a rule they are excessively conceited 
and overbearing, and in some cases positively 
brutal in their demeanour. The officers in 
attendance naturally take their tone from 
their superiors, and treat every one who enters 
the court-room with a roughness which makes 
attendance upon such places inefiably disgust- 
ing." 

If the guilty person be wealthy and the ac- 
cuser poor there is very little chance of justice 



being done. The following case is described 
by the reviewer: — 

^^ We remember an instance in which a rich 
but infamous brothel-keeper had terribly 
beaten one of the poor wretches in her house. 
The ^prisoner* ^as on bail, the accuser waa 
detained as a witness. When the case was 
called, the poor creature came forward, her 
face all clotted with blood and her clothes torn 
to rags — a ghastly spectacle. The counsel 
for the accused took her aside, and, under the 
very eyes of the judge, bullied and coaxed her 
by turns, threatening her with prosecution as 
a vagrant, and with the revenge of her mis> 
tress, until she agreed not to prosecute the 
case on condition of her doctor's bill (say $5 
or $10) being paid. The counsel then an- 
nounced to the justice that the complaint was 
withdrawn. The justice shortly asked the 
complainant if that was so, to which the poor 
creature sadly answered that she would not 
withdraw her complaint if she were not so- 
poor \ but as it was she supposed she could 
not help herself. The justice harshly replied 
that he had nothing to do with that. The 
complaint was dismissed, and the miserable 
woman was promptly bundled out of court by 
the officers." 

The lawyers in such courts match the 
judges. When a person gets " into trouble*^^ 
his gaoler, or some friend, recommends him 
to trust his defence to one or other of a certain 
set of lawyers. What ensues is best told in 
the reviewer's own words : — 

'^ The person thus introduced, after making 
a very i^'N inquiries about the case, asks the 
prisoner, 'How much money have you?*^ 
Usually, of course, the amount is very smallf 
and the next question is, * How much can 
you raise.' The answer is, perhaps fifty, per- 
haps a hundred dollars. ' A hundred dol- 
lars I* cries the lawyer contemptuously j * why, 
I shall have to give that much to the judge 
and twenty to the clerk. D— it, you must 
squeeze out two hundred and fifty dollars 
somehow, or you're gone up.' The prisoner 
asks advice of his keeper, and is told that 

* Lawyer knows what he is about,' and 

should be secured at any price. If, after 
severe pressure, the prisoner declares that he 
cannot raise the required sum, the lawyer 



September, 1 867.] 



THE CANADA LAW JOURNAL. 



55 



gradgingly accepts whatever be can get. But 
it must not be supposed that the fees are 
limited as a rule to two hundred and fifty dol- 
lars. These men, whom long experience has 
made keen in judging of a prisoner's means, 
take all he has, be the same more or less. If 
he has only ten dollars in the world they take 
that, and really make a good fight upon it ; 
if he has five thousand dollars they will ex- 
tract it all out of him, if not interfered with, 
though, of course, such opportunities are very 
rare." 

From Lamirande, the French cashier, these 
harpies extorted nearly $20,000, and bribed 
his gaolers with part of the plunder to let him 
escape. Servant girls are stripped of all they 
possess, and during the war thousands of men 
were hberated from prison on condition that 
they would enlist in the army, the judge, law- 
yer j and prison officials receiving the bounty 
money J amounting to $600, or even $1,500, for 
each person. And all this, the reviewer im- 
plies, is little to the revelations which might 
be made. He has purposely understated the 
case. 

One other periodical representing the ruling 
party of the day, the Nation^ has come for- 
ward with an addition to the reviewer's pre- 
sentment. His indictment is laid against the 
bar. The admissions to the American Bar are 
made without the commonest care or discre- 
tion. " There are many lawyers," the writer 
states, '* in practice in this city (New York) 
who habitually plunder their clients, some- 
times by retaining the moneys collected by 
them, sometimes by selling their clients' in- 
terests outright to the adverse party." He 
further states that '' one of the most reputable 
firms in the city" offered to bribe a young 
lawyer to allow a judgment to go against his 
client by default, and afterwards urged in ex- 
cuse that '^such offers had been accepted in 
other cases." The tone of the profession has 
sank, and its leading members are cowed. 
They might bring about the removal of the 
most notoriously corrupt judges, but they have 
not the courage or the spirit to interfere. 

I have given but an outline of two articles 
which might naturally have been expected to 
shock any community and arouse an impera- 
tive demand for reform. But the people are 



so used to hearing stories of corruption in 
high places that they pay scarcely any atten- 
tion to new disclosures. The Constitutional 
Convention is now sitting, with power, of 
course, to remodel the laws of the State. It 
remains to be seen whether they will make an 
attempt to deal with a Judiciary which is a 
disgrace to the age ) down to the present mo- 
ment they have let it pass unnoticed. 



LEGAL EXPENSES IN ENGLAND. 

We have already given some instances of 
extraordinary bills of costs in England. The 
following, from the Times, shows that a bill 
of £369 was taxed in a suit for 6s. 8d. 

IN RE J. HATTON. 

The bankrupt, a farmer, of Mattishall, Nor- 
folk, applied for his discharge from debts of 
£392. It appeared that having resisted the 
payment of a rate due to the churchwardens 
of the parish of Mattishall, proceedings were 
commenced against him in the Ecclesiastical 
Court, and eventually an order was made for 
payment of the rate (6s. 8d.) and the costs of the 
suit, which were taxed at no less than £369. 
This constituted practically the only debt 
upon the schedule. The bankrupt in his ac- 
counts made the following statement : — 

"In April, 1866, E. W. Crosse, my proctor 
in the suit instituted against me by Messrs. 
Edwards and Mann, obtained a judgment 
against me in an action brought by him for 
recovery of his costs, and I sold part of my 
last year's crop to make payments to him on 
account of his judgment : but on the 4th of 
February last the said Mr. Crosse levied exe- 
cution and sold all my remaining crop, stock, 
and effects, to pay the balance (£165 13s. lOd.) 
of his judgment and the half-year's rent then 
due." 

Mr. Reynard, for the assignee, did not 
oppose J Mr. Bagle y supported the bankrupt. 

Mr. Lawrance, for the churchwardens of 
Mattishall, opposed on the ground that the 
bankrupt, having exhausted his assets, had 
vexatiously defended the suit in the Eccle- 
siastical Court. 

The bankrupt in his evidence said that he 
was a Dissenter, and he had refused to pay 
the rate because he considered it illegal and 
unnecessary. 



56 



THE CANADA LAW jbURNAL. 



[September, 186T. 



By Mr. Baolet. — ^He had occupied the 
farm at Mattishall, in Norfolk, for 22 years, 
and during that time he had paid only one 
rate. He defended the suit upon the belief that 
he had a good defence to it, and he had been 
completely ruined in consequence. When the 
matter came before the magistrates they de- 
clined to interfere on the ground of want of 
jurisdiction. 

Mr. Baolet said he was prepared to call 
Mr. Crosse, the proctor, who would prove that 
the defence was well advised, but 

The learned Commissioner, after hearing 
Mr. Lawrance, said it was unnecessary to 
adduce further evidence. He was of opinion 
that, although the result of the suit had been 
most unfortunate and lamentable, there was 
no proof that the bankrupt had acted veza- 
tiously. The order of discharge would there- 
fore be granted. 



LAW JOURNAL REPORTS. 



COURT OP QUEEN'S BENCH, 

APPEAL SIDE. 

Montreal, Sept. 9, 1867. 

GAULT ET AL., (Plaintiffs in the Court be- 
low,) Appellants; and DONNELLY, 
(Defendant in the Court below,) Res- 

P0in)ENT. 

Secreting — Undue Preference* 

Hddj that an undue preference given by 
an insolvent to one of his creditors, by selling 
him goods in payment of his claim, is not 
a ^^ secreting with intent to defraud," and 
does not justify the issue of a capias ad res- 
pondendum. 

This was an appeal from a judgment ren- 
dered on the 28th of February, 1866, by Badg- 
let/f J., giving judgment for the plaintiffs for 
debt, interest and costs, but granting the de- 
fendant's petition to set aside the capiat which 
had issued. (This judgment will be found re- 
ported in Vol. 1 of the Law Joumalf p. 119.) 

The capias issued upon affidavit of one of 
the plaintiffs that he was credibly informed, 
had every reason to believe, and did verily 
and in his conscience believe, that the defen- 
dant had secreted, and was then immediately 



about to secrete his estate, debts and effects, 
and was immediately about to leave the Pro- 
vince of Canada, with intent to defiraud the 
plaintiffs and his creditors. That defendant 
was insolvent and en dicariftture, and harass- 
ed by suits *, and that his wife desired him to 
go to the United States to live there. 

The deponent proceeded to allege that on 
the previous day he had been in the defen- 
dant's shop, and the defendant informed him 
he had just got through stock-taking, and that 
he had $5,000 stock in store. The next day» 
when the deponent visits the store, he found 
that a large part of this stock had been re- 
moved, and he saw an entry in the books, of 
two pages in length, of goods sold to T. J. 
Walsh. 

The defendant first moved to quash the 
cctpiaSf and this motion being rejected by Ber- 
thelot, J., he petitioned to set aside the pro- 
cess, averring that the transaction between 
the defendant and Walsh was not fraudulent, 
but for the simple purpose of &irly and honestr 
ly paying Mr. Walsh a debt of $1,800, honest- 
ly owing him, and for which Mr. Walsh then 
held the defendant's note for cash before then 
loaned by him to the defendant. 

The evidence adduced upon the petition to 
quash disclosed the following facts : — Mr» 
Walsh, a dormant partner of the defendant,, 
had advanced him $1,400. Finding that the- 
business was not prosperous, he endeavored 
to get his money back, and on the day before 
the capias issued went to the defendant's store, 
and asked for payment of the debt in goods* 
The defendant at first refused to allow any 
goods to be removed, but on the guarantee of 
Mr. Mullin, who happened to be present, that 
he would be answerable in the event of any 
difficulty being raised, he allowed Mr. Walsh 
to take a considerable amount of goods, which 
were entered in the sales book. After an 
attachment had issued, these goods were 
claimed by the assignee, and were placed in 
his possession. 

The judgment of Badgley, J., set aside the- 
capias on the ground that the sale to Mr. 
Walsh, though an illegal preference of one 
creditor, could not be considered a "secret- 
ing" within the statute. From this judg- 
ment the plaintiffs appealed. 



September, 1867.] 



THE CANADA LAW JOURNAL. 



67 



DuYAL, C. J. In this case a capias issued 
against the defendant, but was set aside in the 
Court below on the ground that there was no 
proof of fraudulent secretion by the defendant. 
The majority of the Court think that this 
judgment should be confirmed, but I am of a 
different opinion. The whole case turns upon 
the interpretation to be put upon the word 
"secreting.'' The facts of the case are that 
the defendant, being the plaintiffs' debtor and 
being insolvent, made over a portion of his 
property to Mr. Walsh, another of his credi- 
tors. It is contended that this was only an 
undue preference, and does not amount to a 
fraudulent secretion. But what meaning can 
be given to the term "secreting," if it be not 
a secreting to put property beyond the reach 
of the creditors, as was done in this case? 
Suppose the defendant had sold the effects in 
question and put the money in his pocket, 
would not that have been a secreting of his 
effects? I am of opinion, whenever, by any 
improper means, a creditor is deprived by his 
debtor of the means of getting his just claims, 
that such act is a secreting. The majority 
of the Court, however, are of opinion to con- 
firm the judgment. 

[No remarks were made by Drummond, 
MoNDELET, and JoHNSOX, JJ., who concurred 
in confirming the judgment.] 

Perkins & StepJienSj for the Appellants. 

Jf. Doherii/y for the Respondent. 



Montreal, June 4, 1867. 

DUNLOP, Plaintiff in error j and the 
QUEEN, Defendant in Error. 

Writ of Error— Attorney- General. 

Held, that the fiat for a writ of error must 
be signed by the Attorney •General or Solicit- 
or-General, in person, or by someone specially 
commissioned by the Crown, and that the 
Attorney-General cannot depute his authority 
to sign the fiat to another. 

The plaintiff in error, Charles John Dunlop, 
having been convicted on an indictment fur 
nuisance, in the September Term of the Court 
of Queen's Bench, Crown side, in September, 
1866, sued out a writ of error. 

A preliminary question was raised as to the 
validity of this writ, it having been allowed 
by " Geo. Et. Cartier, Attorney-General, 
" L. C, for T. K. Ramsay, advocate prose- 



" cuting for the Crown, and representing the 
'^Attorney-General in criminal cases in the 
"District of Montreal." 

Mondelet J. I must dissent from the 
judgment about to be rendered. I am of opi- 
nion that Mr. Ramsay had power to sign the 
fiai for the writ of error. In conducting the 
Crown business he does much more impor- 
tant acts than this in the name of the Attorney- 
General. 

Badoley, J. Whatever inconveniences may 
fall upon individuals, the law must be obeyed. 
What is the law respecting writs of error ? 
This is a high prerogative writ which at first 
never issued except on the sign manual of the 
Sovereign. Then authority was delegated to 
the Attorney-General to sign the writ, because 
it was generally upon his advi e that the So- 
vereign acted. The responsibility of issuing the 
writ then rested upon the Attorney-General, 
a high prerogative officer. He is not respon' 
sible to us, but in his individual capacity to 
Parliament. Even the opinion that the Court 
might grant a writ has been set aside. If the 
Attorney-General is not present, the Solicitor- 
General must sign, but no other, unless he be 
deputed under a commission from the Crown. 
We have been favored with a copy of the 
delegation by the Attorney-General to Mr. 
Ramsay. This paper states that in conse- 
quence of the Attorney-General being obliged 
to leave the country, on public business, he 
appoints Mr. Ramsay his attorney to do cer- 
tain acts, and to sign writs of error. CouJd 
this mere procuration impose upon the Attor- 
ney General any responsibility for Mr. Ram- 
say's malfeasance ? I have always entertained 
a strong opinion upon this point — that the 
power of signing a writ of error is in the 
Attorney-General as Counsellor of the Crown. 
I think, therefore, the writ has issued impro- 
vidently, and was signed by a person who had 
no authority to do so. 

Aylwin, J. In this easel feel myself obliged 
to state that there has been an unconstitution- 
al act. The Attorney-General is supposed to 
hear the party applying for the writ, and after 
inquiry into the circumstances, he decides 
whether the writ should issue or not. So far 
from this being done in the present instance, 
without any ceremony, the judgment of the 



58 



THE CANADA LAW JOURNAL. 



[September, 1867. 



Court of Queen's Bench was at once stopped 
by the signature of Mr. T. E. Ramsay. Under 
what authority did he act ? He produces a 
power signed by G. E. Cartier, Attorney-Gen- 
eral, in which it is stated, that inasmuch as 
he is about to leave the Province, he author- 
izes Mr. Ramsay to act in all things for him, 
and especially in issuing writs of error. But the 
instant that the Attorney-General stated that 
he was about to leave the Province, he had 
no more right to do anything ; and the whole 
of his mandat was worth nothing at all. It fell 
completely to the ground. What is the law? If 
the Attorney-General is obliged to be absent, 
then let the Solicitor-General act. Whether 
there was a Solicitor- General or no does not 
appear in this case. We have thus seen 
the whole of the people of this Province gov- 
erned by a man who was absent from the 
country ? Was that not unconstitutional ? If 
these things are allowed to be carried on, then 
I say it is vain for any man in this Province 
to say that his life or property is worth any- 
thing at all. I say that this was clearly un- 
constitutional. I shall say no more, but that 
this writ must be quashed at once, and quash- 
ed ignominiously. 

Duval, C. J. There are involved in this case 
some points that deeply involve the liberty 
of the subject. There is no question here of 
pratique : it is a question of constitutionality. 
What are the powers of the Attorney-General ? 
Let any man reflect for one moment upon the 
extent of the powers committed to him, and 
then say whether they are to be entrusted to 
any person he may name. An indictment is 
preferred, a jury convict, and then a writ of 
error suddenly stops all proceedings. The 
door of justice is closed. Why ? Because sic 
voh sicjubeo — ^no trouble taken to enquire as 
to the reasons for such a course. I am of 
opinion, however, that he to whom a power is 
delegated has no right to delegate it to ano- 
ther — delegatus non potest delegare. It is said 
this is done every day in the Criminal Courts, 
when an indictment is signed by an advocate 
for the Attorney-General, and that if he has 
a right to hang an individual, he had a right 
to sign a writ of error. But it is quite a mis. 
take to suppose that an advocate may not 
take up and conduct a criminal prosecution I 



without showing an authority from the Attor- 
ney-General. So long as the Attorney-Gen- 
eral does not interfere, the Court will say 
nothing. The practice of signing for the At- 
torney-General is a vicious practice, but it has 
been allowed, and no harm is done. But the 
right of private counsel to conduct a prose- 
cution has been tried, and where the Attorney- 
General does not interfere, the Court will not 
do so. Upon these grounds, I was quite pre- 
pared to say yesterday, when this case was 
argued, that the Attorney-General had no 
right to delegate his power to sign writs of error, 
and therefore the writ was wrongly issued. 

The judgment was moUoi as follows : See- 
ing that the writ of error in this cause issued, 
hath improvidently and illegally issued, inas- 
much as the same was allowed by T. E. 
Ramsay, Esq., for and in the name of Her 
Majesty's Attorney-General, and not by Her 
Majesty's Attorney-General, &c. Writ quashed. 



9th September, 1867. 

A new writ having issued, the case came 
up on the merits. 

R, Mackayf Q. (7., for the Plaintifif in Er- 
ror: — The Plaintiff in Error was indicted for 
nuisance in the September Term, 1866, of the 
Court of Queen's Bench, (Crown side,) at 
Montreal. He pleaded on the 12th October, 
1866, a kind of plea to the jurisdiction, set- 
ting forth that the keeping of gunpowder, in 
the locality mentioned in the indictment, was 
regulated by Statute 27-28 Victoria, C. 56 : 
that the Council of the City of Montreal was 
charged to regulate it by by-laws, and had done 
so, and that against persons violating any such 
by-law, proceedings special were to be taken 
in the Recorder's Court : subject to the juris- 
diction of which Court, only, he, Dunlop, was 
or could be placed. The Plea substantially 
raised the question of whether the common 
law was not taken away in such a case as the 
present by force of the new and special pro- 
visions in the 27-28 Victoria, and other Acts. 
Afterwards in April, 1867, the Plaintiff in 
Error, having pleaded not guilty after dismis- 
sal of his preliminary Plea, was tried, at Mon- 
treal, in the Queen's Bench, upon said indict- 
ment: he was found guilty, and judgment 



September, 1867.] 



THE CANADA LAW JOURN 



v&B pronounced against him on the 12th of 
April, as follows: — 

" Ckinsidering that the defendant not haviDg 
established betbre thin Court that he haUi 
abated and prostrated, but on the conlrarj, he 
having neglected to abate and proetrate the 
nnisance complained of, and declared b; the 
verdict of the Jury, it is hereby declared and 
adjudicated, that the defendant should paj, 
and he is hereby condemned to pay to Her 
Majesty the Queen a fine of filly pounds, cur- 
rent money of this province, and to be im- 
prisoned in the Common Gaol of this district 
until the said fine be paid. 

And it is further ordered that the Sheriff of 
the district do forthwith abate and proetrate 
the said nuisance, and hejs, by this Court, 
ordered and authorized to employ and use all 
such means as wil! enable him to abate and 
prostrate altogether, fully and completely, the 
said nuisance, by the immediate destruction 
of the gunpowder contained in the defendant's 
powder magazine, found to be a nuisance by 
the verdict of the jury." 

The plaintiff in error having obtained the 
Attorney- General's fiat sued out the writ of 
error now pending. The reasons of error 
assigned are numerous; a material one being 
that raising the question of jurisdiction in the 
Court that tried the indictment. 

Another one raised the question of whether 
the indictment could lie, being at common 
law, in a case iu which the plaintiff in error 
contends that the common law was and is 
abolished or repealed; other material ones 
raise &e question of whether it was competent 
to the Court to declare forfeiture of the powder 
contained in the magazine mentioned in the 
indictment, and whether it was proper to order 
the "immediate destruction" of the gun- 
powder contained in tlie said magazine. 

The plaintiff in error submits that his plea 
filed 12th of October was good, and ought to 
have been maintained, and that the common 
law had been repealed, before the time of the 
indictmeut being found agtunst him, and the 
iodictment was therefore bad. Where there 
are two laws on the same subject the special 
must prevail overthetgeueral. If that be main- 
tained there will not be cause to go farther; 
bat should the Court be, upon these points, 



against the p 
tend that the 



the gunpowd 

the nuisance 
ing the povrd 
their own pn 
riff precisely 
destroy it, th 
terfere with 1 

A kind of 
needlessly, ol 
property, woi 
much of it p 
piovince for I 

'■ Every ju 
nature of th' 
leged nuisan 
perfectly, wil 



the 

Abatement ii 
property anoi 
" to abate th 
present, cou 



and were hi 
have to ansn 
upon him to 
The plaint 
properly enti 
after the jui 
to the writ 01 
upon the qu 
the plaintiff J 
perty left U> I 
nuisance. 1 
also complai 
BinOLEV, J 
occasioned tl 
In order to i 
which is atw 
briefly lo rev 
Ahillofindi 
brought agtu 
indictment c 
was that the 



60 



THE CANADA LAW JOURNAL. 



[September^ 




''did unlawfiillj and injurioaaly receire and 
keep and still keeps, an excessive qaantitj of 
gunpowder;" and the second count charged; 
that he '' did unlawfully, in juriouslj and neg- 
ligently in said building receive and keep and 
still keeps a laige quantity of gunpowder, to 
wit, fifty-one tons of fi^unpowder, the said build- 
ing being insecure and unsafe lor the purpose 
of storing gunpowder, being neither vaulted 
nor fire-prooC &c. The judgment condemned 
the defendant to pay a fine of £50, ahd to be 
imprisoned till the fine be paid. But instead of 
simply ordering the abatement of the nuisance, 
the judgment added that the Sheriff should 
abate the nuisance by the immediate destruc- 
tion of the powder contained in the defendant's 
powder magazine. The reasons of error 
assigned amount to this — that the indictment 
was brought under the common law, whereas 
there is authority given to the Corporation to 
regulate powder magazines within a certain 
circuit of Montreal. It is sufficient to say that 
by the common law any quantity of powder 
kept in a building is a nuisance. It is not the 
quantity, but the mere keeping of powder that 
is a nuisance. But the first count does not 
go so far as the common law, inasmuch as it 
limits the common law, and charges the de- 
fendant with keeping an excessive quantity of 
powder. The verdict was guilty, and the Sheriff 
was ordered to abate the nuisance by the imme- 
diate destruction of the powder. Now it was 
unreasonable that the Sheriff should destroy 
all the powder, when the defendant was mere- 
ly charged with keeping an excessive quantity. 
Here was the difficulty. Then the next count 
was that the powder was stored in an insecure 
building, and the judgment went upon this 
count also by ordering the destruction of the 
powder. The Court is of opinion that the 
judgment went too far in ordering the destruc- 
tion of the powder, therefore, in the opinion 
of the majority, the judgment in this case must 
be reversed. 

Duval, C. J. I differ and* am for confirm- 
ing the judgment. I believe that the Court in 
the case of a nuisance by the keeping of pow- 
der, has the right to order its destruction. If 
the Sheriff were ordered to remove a bridge 
which unlawfully obstructed a stream, it would 
not be necessary for him to destroy the timber. 



because the material per se would be harmless. 
But thai is not so with gunpowder. The 
Sheriff has no place to keep the powder. If he 
would keep it in a private building, he would 
be just as liable to an indictment as Mr. Dun- 
lop. I see by the record sent up that the de- 
fendant being ordered to abate the nuisance, re- 
fused to do it, and then the judge said he had no 
other recourse but to order the destruction of 
the gunpowder. I think the judge was perfectly 
right in ordering the powder to be destroyed, 
and I would have done the same thing myself, 
had I been sitting in his place. 

Carom, and Drummond, JJ., concurred with 
Badoley, J. 

The judgment is recorded as follows : 
— Whereas there is error in the judgment 
rendered by the Court of Queen's Bench, 
sitting at Montreal on the 12th of April, 1867, 
which orders the abatement of the said nui- 
sance '< by the immediate destruction of said 
'^gunpowder, contained in defendant's powder 
" magazine," this Court doth reverse and set 
aside the said judgment in that respect and to 
that extent, and doth order that the said words 
above related be struck from said judgment. 

JS, Mackayj Q, C, for the plaintiff in error. 

T. K, Ramsay f Q. C, for the defendant in 

error ; and E. Carter, Q, C.j for the private 

prosecution. 



September 9, 1867. 

J. BTE. LEGER dit PARISIEN (Plaintiff 
in the Court below). Appellant; and 
CHARLES LEGER dit PARISIEN (De- 
fendant in the Court below). Respondent. 

Slander — Insufficient Damages, 

In an action for slander, the evidence hav- 
ing proved a gross case against the defen- 
dant: — 

Heldj in appeal, that $50 damages and costs 
awarded by the Court below was inadequate : 
amount increased to $200 and costs. 

The present action was instituted for the 
recovery of $2000 damages, under the follow- 
ing circumstances :— The plaintiff had been 
summoned as a witness in a cause pending 
before the Superior Court, and as soon as his 
deposition was finished, the present defen- 
dant (who was also the defendant in the cause 



Sqtember; 1867. 



THE CANADA LAW JOURNAL. 



61 



abae mentioned) began to spread injurious 
repcts concerning him, accusing him of false- 
hoQ| and perjury. The plaintiff then brought 
an fttion of damages against him, nvhich pro- 
ceedd ex parte, the defendant having neg- 
lectel to plead. The curi of the parish, and 
seveBl other witnesses, were called to prove 
the hjurious expressions used by the defen- 
dant. The judgment of the Superior Court 
was nndered by Monk, J., on the 31st of Oc- 
tober 'i866, condemning the defendant to pay 
$50 dan ages, and the costs of an action for 
$50. Of this judgment the plaintiff com- 
plained, representing that although his ac- 
tion hal been maintained, nevertheless the 
judgmeiA really mulcted him to the extent 
of $3.81 ) in this way : his attorney's taxed 
costs were $69.31, whereas the damages and 
costs recovered amounted to only $65.50, 
leaving a deficit of $3.81. He accordingly 
appealed, and claimed more ample damages. 

The respondent appeared, and submitted 
that the judgment should not be disturbed. 

Duval, C. J. The plaintiff had proved his 
case, and we think it unjust that he should 
be made to pay money for having brought his 
action. We are of opinion that the judgment 
must be set aside, and the defendant con- 
demned to pay $200, with the costs in both 
Courts. 

Druhmond, J. I do not think a man should 
be mulcted in costs for exercising a clear 
right. The plaintiff having been outraged 
in a gross manner, only performed a duty 
from which he could not shrink, in bringing 
an action against his slanderer. This waA a 
very gross case, and I think it was the duty 
of the Court to make an example of the de- 
fendant, and thus (protect witnesses brought 
before tlie Courts, and see that they are not 
hunted down as Parisien has attempted to 
hunt down his nephew. We. think it is the 
duty of the Court to give exemplary damages, 
and are of opinion that the Court below 
should have awarded him $200 damages in- 
stead of $50. 

Caron, and Badolet, JJ., concurred. 

The judgment was motivS as follows :— 

Consid^rant que la somme de cinquante 
dollars, que le d^fendeur a 4t6 condamnS & 
payer par le jugement dont appel, est insuf^ 



fisante pour indemniser le demandeur des inju- 
res infamantes et cruellement grossidres i lui 
prodigu^es par le d^fendeur a plusieurs re- 
prises avec une persistance qui indiquait chez 
le d^fendeur une malice profonde : consid6rant 
partant que dans le dit jugement il y a erreur, 
&c. Judgment reversed, and defendant con- 
demned to pay $200 damages, with costs ot 
the highest appealable class in the Circuit 
Court, and the costs of the appeal. 

JetU & ArchombaulU for the Appellant. 

DenU & Lefebvre, for the Respondent. 



L'HEUREUX (Plaintiff in the Court below), 
Appellant ; and BRUNEL (Defendant in 
the Court below), Respondent. 

Libd— Justifiable Writing, 

The defendant in an action for libel had 
written a letter to the plaintiff's brother-in- 
law, accusing the plaintiff of dishonesty and 
trickery, on account of his having broken up 
a sale from the brother-in-law to defendant: — 

Held, in appeal, that although the letter 
was not a privileged communication, yet that 
it was justifiable under the circumstances^ 
and an action did not lie. 

The plaintiff instituted the present action 
in the Circuit Court to recover damages from 
the defendant for libellous expressions con- 
tained in a letter written by the defendant on 
the 5th of April, 1864, to one Lachapelle, the 
plaintiff^ 8 brother-in-law. It appears that 
Brunei, the defendant, had entered into nego- 
tiations with Lachapelle for the purchase of a 
piece of ground belonging to the latter, and 
the terms had been concluded, when L'Heu- 
reux, the plaintiff, hearing of the proposed 
sale, succeeded in inducing Lachapelle to sell 
the ground to him. Brunei then brought an 
actipn against Lachapelle to compel him to 
execute the deed to him ', and while this action 
was pending, being informed ot the part played 
by L'Heureux, he wrote to Lachapelle com- 
plaining of the machinations of L'Heureux, 
and amongst other things using the expres- 
sion, '^ Vous voyez maintenant la fourberie, 
la malhonnetete et Tin justice avec lesquelles 
il a agi, et avec lesquelles il agit encore au- 
jourd'hui sL votre egard." This letter Lacha- 
pelle had no sooner received than he took it 
to L'Heureux to get him to read it to him, 



62 



THE CANADA LAW JOURNAL. 



[September, IdSr. 



and then both went to a notary to have it re- 
read. It was for the ex{»«8sion8 contained in 
this letter that L'Heurenz instituted the pre- 
sent action of damages. 

On the 30th of December, 1865, judgment 
was rendered by Monk^ J., in the Circuit 
Court, awarding the defendant $50 damages. 
The defendant then inscribed the case for re- 
yiew, and on the 30th of May, 1866, this judg- 
ment was reversed by BmUh and Berthdot, J J., 
{Badgley, J., dissenting), and the action dis- 
missed. The grounds of this judgment were 
that the letter in question was written to Lar 
chapelle confidentially in reference to the 
transaction of bargain and sale made by La- 
chapelle to the d<^fendant, and that the pub- 
lication of the letter was unauthorized by the 
defendant, and tbat tbe letter was under the 
circumstances justifiable. The following re- 
marks were made when judgment was ren- 
dered in review. 

Smith, J. This is an action of damages 
for slander brought by the plaintiff for a letter 
written by the defendant. The letter was 
written strongly and in very severe terms, 
and was considered by the Court below to be 
a libel. This judgment appears to us to be 
erroneous. We think that the slander, if a 
slander at all, was one which the defendant 
had at the time a strong reason for writing. 
The plaintiff's brother-in-law had promised to 
sell to Brunei a certain piece of ground, and the 
plaintiff persuaded him to break this agree- 
ment, and even went so far as to declare that 
he would hold him harmless for anything he 
might suffer for his breach of agreement. Now 
a man who stands in this position of inducing 
another to break his agreement, is naturally 
exposed to imputations on his honesty. The 
letter in question charged the plaintiff with 
inducing this violation of contract, and 
it must be admitted that there was a good 
deal in the way of justification for this. More- 
over the plaintiff did not negative the facts ) 
there is, therefore, a strong presumption that 
they are true, and, if these facts are true, it 
cannot be pretended that there is much slan- 
der in the letter complained of. The plaintiff 
does not stand in the position of a man with 
clean hands before the Court. The defendant 
has perhaps only told the truth in rather plain 



language. There is no ground as far as we 
can see for damages, and we think that the 
judgment must be reversed, and the action 
dismissed. 

Badolst, J. It is perfectly true that 
the plaintiff does not come into Court with 
clean hands. He is the cause of the nrhole 
trouble. He induced his brother-in-law to 
break a contract for the sale of property, and 
afterwards obtained this property for himself. 
The slander is no slander as between the two 
parties themselves ; but when the defendant 
went beyond this, and imputed atrocious mo- 
tives to a third party, he was no locger pro- 
tected. For these reasons I must dissent, but 
I would not give the plaintiff vindictive dam- 
ages. I would merely support the plaintiff's 
right of action, and say to the defendant, if 
you do slander, you must take the conse- 
quences. The Court must look at a case of 
this kind as a jury would. Under the cir- 
cumstances I would have given the plaintiff 
judgment for $10 and costs, and no more. 

Berthelot, J., concurred in the judgment. 

The plaintiff then instituted the present ap^ 
peal. 

Duval, C. J. The Circuit Court condemned 
the defendant to pay a certain sum of dam- 
ages. The Court of Revision has reversed 
this judgment and dismissed the action, upon 
the principle that the letter was written con- 
fidentially and was a privileged communica- 
tion. We confirm the judgment of the Court 
of Revision, but not for the reasons given. 
We do not think the letter was a confidential 
letter or privileged, but we say this, that every 
word in the letter is proved to be the strict 
truth. I do not recollect a single case in 
which the conduct of the plaintiff was proved 
to be worse. He interfered between the seller 
and purchaser, and counselled his brother-in- 
law to destroy the acte of garantie which he 
had given him against the defendant's claim. 

Johnson, J. I will state briefly the grounds 
on which I concur. It would appear, and did 
appear to me, at first sight, that if this letter 
was not a privileged communication, it was 
unlawful, and therefore, the plaintiff should 
not be turned out of Court. But it is clearly 
proved that the plaintiff acted in a dishonest 
manner : he is a detected villain, exposed by 



Sejtember, 1867.] 



THE CANADA LAW JOURNAL. 



63 



the publication, in the most restricted legal 
senie, by the person who had the greatest 
intffest to detect him. I am satisfied from 
the evidence that no injury was sufiered. 
Therefore I concur in the judgment of the 

Cowt. 
DiuMMOND, and Mondelet, JJ., also con- 

cumd. 
The judgment was moUvS thus : 
" Considerant que, quoique la lettre qui fait 
le 8u jet de la presente action ne doive pas §tre 
envisigee comme entrant dans la categorie 
des communications specialement protegees 
par la loi, comme confidentielles, Tintirn^ se 
trouve neanmoins justifie de Tavoir ecrite et 
transmise & son adresse. Car la preuve fait 
voir que rintim6 a 6crit cette lettre sans au- 
cune intention malicieuse, mais seulement 
dans la vue de faire connaitre au nomni6 
Jeannot dit Lachapelle, & qui elle etait ad- 
dressee, les effets dangereux pour lui ainsi 
que pour I'Intime, de certaines intrigues cri- 
minelles dans lesquelles Tappelant cherchait 
le concours du dit Jeannotte dit Lachapelle, 
a regard de la vente mentionii^e dans cette 
cause. Considerant que quoiqu*il y ait erreur 
dans Tun des motifs, il n'y a pas mal juge 
dans le jugement," Ac. ; Judgment confirmed 

with costs. 

Dtyrion, Dori(m de Geoffrion, for the Ap- 
pellant. 

Cartier, Pominville & BOoumay, for the 
Respondent. 



COURT OF REVIEW. 

Montreal, April 23, 1867. 

DUBORD V. LANCTOT. 

Rmsion of Judgments under the Municipal 

Act 

Held, (aflfirming previous decisions), that 
27-28 Vict., cap. 39, does not give a ri^ht of 
revision of judgments under the Municipal 
Act. 

This case had been inscribed by the defen. 
dant for hearing in review on a judgment 
rendered by Monk, J. 

Carter, Q» C, moved to discharge the in- 
scription, on the ground that inasmuch as 
there was no appeal in this case, (an action 



under the Municipal Act,) there could be no 
revision of the judgment. 

Devlin, for the defendant :— The judgment 
of the Superior or Circuit Court, when in- 
scribed for review, only becomes a final judg- 
ment when it has been confirmed or reversed 

in review. 

[LoRANOER, J. There is, I think, a judg- 
ment fevorable to your pretension — Johnston 
V. Kelly, where the judges here held that 
there was a right of review from a judgment 
under the Insolvency Act, though there was 
no right of appeal.] 

The judgment in the first instance does not 
become a judgment of the Court till it has 
been submitted to this Court. The appeal, 
after a case has been decided in this Court, is 
not from the judgment in review, but from the 
final judgment of the Superior or Circuit 
Court, as the case may be. Sec. 30 of cap. 
39, 27-28 Victoria (1864), says that so mucn 
of any Act or Law as is inconsistent with the 
provisions of this Act, is hereby repealed. 
Now sec. 20 says, that in every case there 
shall be the right of review. I contend, there- 
fore, that this gives me a right to have the 
judgment reviewed. This is not in reality an 
appeal, it is still the same Court. 

[Monk, J. Your view is that it is the same 
Court, rectifying perhaps the error of its own 
judgment.] 

Yes. 

[Berthelot, J. When the judgment in 
Taylor v. Mullin was being considered, it was 
shown that there had been decisions at Que- 
bec refusing the right of review in these 
cases.] 

The right of review was granted in Ex parte 
Beauparlant, a case of certiorari (10 Jurist, 
102. 

[Monk, J. If the point were still open, and 
not decided by the Court of Appeals, I would 
be inclined to reconsider it. I must say I 
have great doubts about it.] 

Mr. Carter, Q. C, remarked that the judg- 
ment in this case merely rectified the pro- 
cedure. 

Mr. Devlin. But it is a judgment which 
cannot be remedied by the final judgment. 
The judgment complained of allowed the pe- 
titioner to supply the original requite libdUe, 



64 



THE CANADA LAW JOURNAL. 



LSeptember, 1867- 



which was misBing from the record, by a copy. 
It is one of those iDterlocntoiy judgments 
which cannot be remedied by the final judg- 
ment. 

Judgment was given the following day 
granting the motion of the plaintiff to reject 
the inscription. 



SUPERIOR COURT. 

MoNTREAi^ 28th Feb., 1867. 

ASHLEY HIBBARD v. BARSALOU et al., 
and W. R. HIBBARD, intervening. 

Siaiemmt in Plea affecting a stranger to the 
reeordr^Claim to intervene. 

Held, that a person complaining of a 
statement contained in the pleadings in a 
cause, to which he is not a party, as false 
and calumnious, has no right to intervene for 
the purpose of having the passage complained 
of struck from the record. 

Ashley Hibbard, the plaintiff, sued the de- 
fendants in an action of damages for £10,000, 
charging that the defendants conspired toge- 
ther to ruin him by unfounded indictments ; 
that they procured a number of these to be 
found by grand jury, and preferred others 
that were returned ^' no bill ;" that upon some 
of those found he, the plaintiff, had been ac- 
quitted, and upon the others nolle prosequi 
had been entered, &c., &c. 

Defendants severed, and pleaded the usual 
pleas of reasonable and probable cause, ab- 
sence of malice, &c., and that what they had 
charged against the plaintiff he had really been 
guilty of; that among other things he had 
misused the funds of '^ The Canadian Rubber 
Company." By their amended pleas they 
went further, to allege that W. R. Hibbanl, 
(brother of the plaintiff), while managing the 
aflBEurs of the said Company in 1863, also 
misapplied the funds of the Company, appro- 
priated part of them to his own use, to the 
extent of over fourteen thousand dollars. 
There were four sets of pleas filed, all very 
much alike. 

The case now came up on four petitions in 
intervention presented on the 26th of No- 
vember, 1866, by William R. Hibbard, to be 
permitted to intervene in the suit. 



The petitions, were, of course, nearly 
alike ; one set forth the following grounds of 
intervention : — In 1863 and 1864, an in- 
corporated Company, called the Canadian 
Rubber Company, existed at Montreal, of 
which Company, Murphy, one of the defen- 
dants, was a stockholder and director. Peti- 
tioner was a stranger to this suit, which was 
brought by Ashley Hibbard to recover dam- 
ages from the defendants for malicious prose- 
cution and other torts. In the fiflh plea of 
the defendant Murphy, there occurred the fol- 
owing passage : — " That during the time of 
' said William R. Hibbard' s management, 
' from 1863 to 1864, the said WilKam R. 
' Hibbard, plaintiff's brother, did also mis- 
' ftpply the funds of the Corporation, appro- 
' priate part of the same to his own use, and 
' finally did bind the Company for his own 
* private use for large sums of money, to wit, 
' a sum of $1435.60, for which the said Com- 
' pany since obtained judgment before this 
' Court, to wit, on the — day of March last 
^past,'' which passage was by Murphy said 
to have been also contained in the pleas 
of the Canadian Rubber Company in a 
certain cause formerly pending between the 
present plaintiff and the Rubber Company, 
and the statement involved in it was 
affirmed by Murphy in his fifth plea to 
be true. The petition proceeded to allege 
that the petitioner was y^rv much hurt in 
his feelmgs and in the estimation of his ac- 
quaintances by this passage of the plea, which 
passage the petitioner averred to be imperti- 
nent to the cause, false and calumnious, and 
meant to hurt the petitioner in his feelings, 
name and character, and did so hurt him, 
and would continue to do so day by day 
till suppressed or discontinued and apologized 
for. That the intervening party never heard 
of the said pleas of the said Canadian 
Rubber Company, in the other cause referred 
to. That the defendant Murphy could not 
claim to keep of record a statement falsely 
charging the petitioner with dishonorable 
misuse of funds of a public Company. That 
the statement complained of is a scandalous 
false statement of matters itrcmgers d la caustj 
&c,j &c. Conclusion, that he be permitted 
I to intervene in the cause, and that the Court 



September, 1867.] 



THE CANADA LAW JOURNAL 



65 



declare tkis part of the pleas calumnious, 
and order that it be suppressed as such, and 
as having no rapport d la cause between 
plaintiff and defendants. 

The petition was filed on the 27th of No- 
vember, 1866, and an argument took place 
as to vehether it should be allowed. 

Girouardf and OrosSj Q. C, for defendants, 
contended that only by action direct and prin- 
cipal could a party in the position of peti- 
tioner obtain his end ; that he had not such 
an interest in this suit as to be entitled to in- 
tervene in it. Such an intervention was never 
heard of in Lower Canada. A pecuniary in- 
terest must be shown. 

R, Mackay^ for intervening party, con- 
tended that money interest was not the 
only one entitling to intervention. Shall it 
be said that a man having a fifty dollars of 
interest may intervene in a cause, but that 
where his character, worth to him thousands, 
is at stake, he may not ? There is therefore 
inUrU WhonneuTj entitling to intervention as 
well as pecuniary interest. The intervening 
party here is not to be referred to direct ac- 
tion only, against these defendants. This 
cause is the best one in which to get an order 
suppressing the injures complained of; the 
intervening party ought to be allowed a stand- 
ing in this cause, to defend his character put 
in issue between plaintiff and defendants, and 
as to which they may make articulations, and 
go to EnquHe, 

In Carr6 and Chauveau, Qu. 1270, it is 
shown that a notary may intervene in a case 
between third parties to defend his ode argu6 
defaux. It is said that he has an int&it 
d'honneur to intervene. Though separate ac- 
tion may lie, intervention may lie too, cer- 
tainly may lie if concluding only for suppres- 
sion of m^moires or pleas as here. MerliUj 
cited in C7orr^ Qu. 1270 quater. Bioche 
agrees. 

In view of these authorities these interven- 
tions of W. R. Hibbard have been advised. 
They purposely conclude only fbr suppres- 
sion of portions of pleas objected to as ca- 
lumnious, the intervening party reserving his 
recourse for damages, in other, or direct, ac- 
tion. 

Berthelot, J. The interventions must be 



dismissed; the intervening party shows no 
interest such as we are accustomed to. He 
can get all he wants by another mode. Such 
interventions would lead to great confusion in 
causes. 

Machay & Austin, for the Intervening Party. 

jD. Oirouard, and A, Cross, Q, C, for the 
defendants. 



MONTHLY NOTES. 

COURT OP QUEEN- S BENCH.— Appeal. 

Side. 

Montreal, Sept. 9, 1867. 

RiMMER (defendant in the Court below) Ap- 
pellant; and McGiBBON (plaintiff in the 
Court below) Respondent. 

Agreement to share costs. 

This was an appeal from a judgment ren- 
dered in the Circuit Court by Monk, J,, on 
the 31st December, 1866, condemning the 
appellant to pay $106.53. The action was 
brought by the respondent for $106.53, the 
balance of an account. Defendant pleaded 
that the balance of $106.53 should be reduced 
by $15, the value of three cases of Old Tom 
gin not credited to him ; and further, that the 
sum of $64.91 should also be deducted, this 
sum being the plaintiffs share of certain ex- 
tra disbursements and fees paid by the defen- 
dant in and about the prosecution of a suit 
against one Morgan and others. The plea 
tendered the balance, after deduction of these 
sums, $126.62. Plaintiff answered that he 
never promised to pay a share of the costs in 
question as alleged by defendant. The parties 
went to proof, and it appeared that plaintiff, 
defendant, and Dow & Co., were interested in 
having certain transfers made by one Morgan 
(against whom they had claims) set aside, 
and the defendant brought an action against 
Morgan which was successful, but there were 
about $180 of untaxable expenses, a third of 
which, as he pretended, the plaintiff had 
agreed to pay. The plaintiff, when exam- 
ined on fails et articles, stated the under- 
standing to be this : he had promised to bear 
a share of the expenses, if the defendant 
should be unsuccessful, but not otherwise. 



66 



THE CANADA LAW JOURNAL. 



[September, 1867. 



The defendant's plea being dismissed in the 
Court below for want of proof, he brought 
the present appeal. 

DuYAi., C. J., said that the defendant had 
two offsets to the plaintiff's account. The 
first of these was with reference to some Old 
Tom gin. This was a small matter, but the 
evidence was not sufficient to establish the 
plea, and this pretension must be rejected. 
Then with respect to the costs incurred by the 
appellant for the benefit of the creditors gene- 
rally, that reMed on agreement. The plaintiff 
had been examined on faiU et articles^ and 
he stated the agreement to be this: that if 
the appellant was unsuccessful in the claim 
he was bringing, the plaintiff would pay part 
of the costs J but if he was successful, then 
he (Mr. McGibbon) would have to bring his 
own action and pay his own costs, and he 
never agreed to pay more. This would appear 
to be very reasonable indeed. Mr. Perkins, 
who acted as attorney ior both parties, con- 
firmed this. It was plain that the defendant 
could not set off these costs, because they 
were dependent on an agreement, and this 
agreement the plaintiff denied. Then again, 
the plaintiff would have a right to a bill of 
particulars quite different from that given by 
the defendant. The defendant should have 
given a detailed account of what he expended 
on each occasion. The judges were therefore 
of opinion that the Court below was right, 
and the judgment must be confirmed. 

Caron, Drummond, and Badgley, JJ., 
concurred. 

W, H, KerTj for the Appellant. 
John Monkj for the Respondent. 
[A case with some slight bearing upon the 
question here may be found in the Law Re- 
ports, 1 A. & E. 78, The Kestrel. In this case 
the plaintiffs were the first mortgagees of a 
vessel, and a decree had been made by con- 
sent that they should receive the sum claimed 
by them, and the ^^ costs, charges and ex- 
penses properly incurred" by them as mort- 
gagees. The registrar having taxed these 
costs as between party and party, and not as 
between solicitor and client, the plaintiffs 
Asked for the revision of the taxation. The 
Court, however, held that the ''costs, charges 
And expenses properly incurred," included 



only costs as between party and party, and 
affirmed the Registrar's taxation. — Ed.] 



McGee (defendant in the Court below), Ap- 
pellant ; and Labelle (plaintiff in the Court 
below), Respondent. 

Delivery of Planks — Proof of Quantity, 

The Plaintiff sued for $236.12, balance due 
for planks sold and delivered. Defendant 
pleaded that the $400 which he had paid more 
than covered the plaintiff's account, as the 
planks were inferior in quality, and deficient 
in quantity. Judgment having been rendered 
for the amount claimed, the defendant ap- 
pealed, on the ground that the plaintiff had 
not sufficiently proved his case. 

DuYAL, C. J., said that judgment had been 
rendered for the price of a quantity of planks 
sold. Two objections had been raised ; one 
with respect to the quality, and another with 
respect to the quantity. With respect to the 
quality, that objection must be abandoned, 
because there was proof that the defendant was 
present at the delivery of the last load, and 
was quite satisfied with the quality. Besides, 
the price stipulated was of itself sufficient to 
show what was the understanding of the par- 
ties as to quality. Then with respect to the 
quantity, the plaintiff appeared to be an un- 
suspecting man who handed over his planks 
to the carters without keeping a very strict 
account of them, and the defendant seemed 
to have depended on his being unable to prove 
the quantity delivered. But fortunately for 
the plaintiff there was proof of the quantity 
delivered. For one of the carters said he had 
carted 15 loads of 75 planks each, and that 
he carted less than the others, because he was 
sick. If this were multiplied by four (the 
number of carters), it would apparently make 
more than the plaintiff claimed for. There 
was a reason for this : one of the other carters 
said he did not cart as much as the others, 
because he only commenced at three in the 
afternoon. Making a deduction for this, the 
Court came to the conclusion that the quan- 
tity charged was correct. In England it would 
be left to the jury to say whether it would be 
fair and equitable to allow the plaintiff the full 
amount of his claim. Here the Court had 



September, 1867.] 



THE CANADA LAW JOURNAL. 



6T 



the power of a jury, and it was of opinion 
that the plaintiff had made oat his claim. 
The judgment, therefore, must be confirmed. 

Caron, Dbumm okd, and Badglet, JJ., con- 
curred. 

M* Doherty, for the Appellant. 

LebUmCj Cassidy <k Leblanc, for the Res- 
pondent. 



Messikr (defendant in the Court below). Ap- 
pellant; and Dayignon (plainti£f in the 
Court below). Respondent. 

Promissory Note — Power of Attorney. 

The plaintiff brought his action for a bal- 
ance of $285 due on a promissory note for 
$600, payable 24 days after date, signed by 
one J^'Esperance, attorney for the defendant. 
The plea was, want of consideration, and that 
defendant had no knowledge of the note in 
question before the institution of the action. 
Judgment was rendered by Monk, J., in the 
Superior Court, on the 31st of December, 
1866, in favor of the plaintiff. 

The defendant appealed, and submitted, 
1st, That the note in question was signed by 
error by L'Esperance, and without the defen- 
dant's knowledge or consent. 2nd, That the 
plaintiff gave no value or consideration for it. 
3rd, That the plaintiff had still in his hands 
the notes for the renewal of which he pre- 
tended the note in question had been given. 

Badoley, J., said the case turned upon the 
authority of the attorney. The defendant never 
acknowledged the note, never saw it, never 
knew of its existence. The plaintiff never 
made any communication to him about it, 
nor did his attorney. The only question then 
was as to the power given by Messier to L'Es- 
perance. The power of attorney was a special 
act before two notaries, and merely gave 
L'Esperance power and authority to raise 
money by loan. Now the note in question 
was acknowledged by L'Esperance, as a set- 
tlement of indebtedness from the defendant to 
the plaintiff, which act was not within the 
scope of L'Esperance' s authority. The action, 
therefore, should have been dismissed. The 
motivSs of the judgment are : Considering that 
the promissory note, the basis of this suit, was 
made by Edouard L'Esperance, as the attorney 



ad negotia of the defendant, in consideration 
of an indebtedness alleged by the plaintiff to 
be due to him by the defendant, and in set- 
tlement thereof: considering that the said note 
was made without the knowledge or consent 
of the plaintiff: considering that the said 
L'Esperance was actually under a special 
procuration which did not give him authority 
to make and sign the said note in settlement 
between the parties : considering that the act 
of the said L'Esperance as such attorney has 
never been recognized by the defendant, nor 
has he acknowledged the amount contained 
in said note due by him to the respondent, and 
that in consequence the action of the said 
plaintiff should have been dismissed by the 
Superior Court : considering that in the judg- 
ment of the said Superior Court there is error, 
Ac. 'j — Judgment reversed, and action dis- 
missed. 

Duval, C. J., Cabon, and Drummokd, JJ.,. 
concurred. 

ff, F» Rainvillef for the Appellant. 

Moreau & Ouimet, for the Respondent. 



Mutual Fire Insurance Company (defen- 
dants in the Court, below). Appellants ) and 
LoRRAiN (plaintiff jjar rcpme d^ instance}, 
Respondent. 

Insurance — IdentificcUion of object insureds 

The present action was instituted by Fran- 
cois Quenneville for £135 10s, namely, £50 
insurance effected on a barn alleged to have 
been destroyed by fire, £75 for grain con- 
sumed with this barn, and £10 10s. for ani- 
mals in it. The plaintiff had another barn 
insured for £25, and the difficulty arose from 
a doubt whether it was the £50 or the £25 
barn which had been burned. On the 17tb 
of April, 1865, judgment was rendered in the 
Superior Court by Monk, J., in favor of th& 
plaintiff, he being of opinion that it was the £50 
barn which had been destroyed. This judg- 
ment was confirmed in revision on the 28th 
of February, 1866, Badgley, J., dissenting. 
(This judgment will be found reported Vol. 1 
of the Law Journal, pp. 116, 117, Quenneville 
V. The Mutual) The defendants now brought 
the present appeal. 

Duval, C. J., was of opinion that the judg- 



68 



THE CANADA LAW JOURNAL. 



[September, 1867. 



men! should be reyersed. There was an er- 
ror as to the bam destroyed. 

MoyDEL£T, J., concurred with the Chief 
Justice. 

DauMMOND, J., observed that he did not 
consider the case so clear as the raajoritj of 
the Court did. He had much doubt on the 
subject at the l^eginning. The evidence, how- 
ever, appeared to favor the defendants ; and 
by law the responsibility of the uncertainty 
must fall upon him who gave the description. 
It was the insured who gave the description, 
and it was his fault if it was vague. 

JoHKSON, J., said that his judgment rested 
upon the fact that tbere was no proof that the 
thing insured had been destroyed by fire ] on 
the contrary, the proof went to establish that 
it was another barn that was destroyed. 

Judgment reversed. The motivia were : Con- 
sid^rant qu'il est acquis en preuve en cette 
cause que la grange qui a brule est celle qui 
avoisinait la maison en bois 6rig6e sur la pro- 
fondeur de la terre de Pintim^e, laquelle n'a 
^t6 assuree que pour £25, et non pas la 
grange avoisinant la maison en pierre erig^e 
sur le front de la terre de rintim6, laquelle a 
4i4 assuree pour £50, Ac. Judgment re- 
versed. 

Dorion <fc Dorion, for the Appellants. 

LebUmc d: Cassidyj for the Respondents. 



Lavoib (defendant in the Court below). Ap- 
pellant ; and Deouise dii Larose (plaintiff 
in the Court below), Respondent. 

Eevendication — Illegal exaction of toll. 

This was an action to revendicate a horse 
and cart under the following circumstances: 
—On the 26th of April, 1864, the plaintiff 
was driving to St. Martin, where he resides. 
He had just passed the Viau Bridge, over the 
Rividre des Prairies, when he was stopped at 
the extremity by the defendant (the keeper), 
who demanded from him 13 sous for the toll. 
The plaintiff tendered him ten soiis as the toll 
for the bridge, but refused to pay the three 
sous demanded for the turnpike. The keeper 
refusing to let him pass, the plaintiff and his 
wife got out and walked home, leaving his 
horse and wagon with the tollgate keeper. A 
few days after he brought an action to reven- 



dicate these effects. The effects were surren- 
dered, and the defendant pleaded that he never 
took possession of them, and was only acting 
in pursuance of the instructions of his em- 
ployers. 

Judgment was rendered in the Circuit 
Court on the 30th of April, 1866, by Badgley, 
J., who made the following observations : — 
This is an action of damages under the fol- 
lowing circumstances. There is a bridge lead- 
ing from this Island to Isle Jesus, at which 
there is a toll of ten sous to be paid. In 
1862, certain proprietors, owners of the bridge, 
formed an association to construct macadam- 
ized roads leading from the bridge, aud a 
charter was granted, authorizing the levying 
of a road toll of not more than one sou per 
mile. The plaintiff and wife one day had 
crossed the bridge, and on asking the toll col- 
lector what was the toll, were informed 13 
sousj ten for the bridge and three for the road. 
Larose said, I will pay you ten sous for the 
bridge, but not three for the road, as you are 
not entitled to it. The toll keeper insisting, 
Larose wanted to go back,'^but the toll keeper 
then said : If you go back you must pay me 
ten sous more for the bridge. Larose then 
tried to turn round to return home, but the 
toll keeper seized his horse's head, and re- 
fused to allow him to go till he should have 
paid 13 sous. Finally, Larose left his horse 
and cart there, and walked back home. The 
toll keeper had a right to ask for 11 sous 
only, as there was only one mile of the mac- 
adamized road to be used, and if he had lim- 
ited his demand to this the plaintiff would 
probably have paid it. In asking more the 
gate keeper was in the wrong, and his stop- 
ping the horse was illegal. The plaintiff has 
brought an action of revendication of his pro- 
perty, and claims damages. The property 
has been already restored, but as the defen- 
dant was in the wrong in attempting to exact 
more than was legal, judgment will go for $10 
damages, with costs as of the lowest appeal- 
able class. 

From this judgment the defendant insti- 
tuted the present appeaL 

DuYAL, C. J., after stating the facts of the 
case, said, it was evident that the keeper of 
the bridge had no right to the three sous de- 






September, 1867.] 



[ THE CANADA LAW JOURNAL. 



69 



manded. This being the case he was wrong 
in stopping the plaintiflf^s horse, and the judg- 
ment must therefore be confirmed. It was a 
pity he had not been better instructed in his 
duties. 

Drummond, Mokdelet, and Johnson, JJ., 
concurred. 

Cartierj PomirwUle & BStoumayj for the 
Appellant. 

Larcmger <k Loranger, for the Respondent. 



Gbayells (plaintiff in the Court below), Ap. 
pellant; and Belanger (defendant in the 
Court below), Respondent. 

InsnlUng language in a MagUtraU^s Court — 

Damages* 

The plaintiff instituted an action for £50 
damages, under the following circumstances : 
On the 14th of November, 1863, he made a 
complaint of trespass before a Justice of the 
Peace against the defendant and one Leblanc. 
The defendants were tried separately, and after 
the trial of the present defendant, Belanger, 
had terminated, and while the plaintiff was 
giving his evidence under oath in the case of 
the other defendant, Belanger interrupted him 
several times, accusing him of perjury. The 
plaintiff appealed to the magistrate for pro- 
tection, and the magistrate reprimanded the 
defendant, but this did not prevent him from 
repeating his insults. The plaintiff subse- 
quently instituted the present action for $200 
damages, which was dismissed by the Circuit 
Court on the 30ih November, 1866. The 
plaintiff now appealed. 

Duval, C. J., after stating the circum- 
stances, said the case was of some import- 
ance. If the Court were to confirm this judg- 
ment, the plaintiff would go out of Court 
branded as a perjurer. The evidence did not 
allow the Court to fix this bad character upon 
him. The judgment must be reversed. The 
Court would not award exorbitant damages, 
but the defendant must pay the costs. He 
would have stood in a better position, if, in- 
stead of repeating the insults, he had ex- 
pressed his regret at the language he had 
used. As the costs would be considerable, 
the damages would be restricted to $20. 
MoNDELET, J., read the judgment of the 



Court, as follows: — Consid^rantque Vintira^, 
par ses injures prof(6r^es a l*6gard de Tappe- 
lant et k son adresse, conr tenant, en presence 
de Pauditoire, et tandis que 1' appelant rendait 
son temoignage en la dite Cour, s'est rendu 
coupable d*une conduite trds-r6pr6hensible et 
attentatoire au caractdre et a la reputation de 
P appelant, et rendant le dit intim6 passible 
de dommages envers le dit appelant : con- 
sid^rant par consequent qu' en d^boutant Pac- 
tion de P appelant la Cour de premiere in- 
stance a erre, cette Cour infirme, &c. Judg- 
mept reversed, and defendant condemned to 
pay $20 damages, with costs of highest ap- 
pealable class Circuit Court, and all the costs 
of the appeal. 

Drummond, and Johnson, JJ., concurred. 

Loranger & Loranger, for the Appellant. 

Mhd, Marchand, *for the Respondent. 



Venance Brunet dit L'Etang et al, (defen- 
dants in the Court below). Appellants ; and 
Eustache Brunet dit L'Etang, ei ah 
(plaintiffs in the Court below). Respondents* 

WUl before a Notary and two Witnesses — 

Dictaiion, 

This was an appeal from a judgment ren- 
dered by Badglet/y J., in the Superior Court, 
on the 30th of June, 1.866. (Reported 1st 
vol. Law Journal, pp. 60, 61.) 

The present respondents (two of the chil- 
dren) brought an aotion en pitiiion d'hirdditi 
claiming from the appellants (the other four 
children) two-sixths of the succession of the 
late Eustache Brunet dit L'Etang, their 
father. To this action the defendants pleaded 
that their father had made his will before 
Valois, notary, and two witnesses, on the 27th 
of April, 1863, by which he bequeathed 3,500 
francs to each of his two daughters ; that 
Delina (one of the [plaintiffs) had already 
received 2,400 firancs, leaving a balance due 
to her of 1,100 fVancs. That the testator had 
bequeathed to Venance (one of the defen- 
dants), the emplacement on which the tes- 
tator resided, with an island at the end of the 
parish of Pointe Claire; and that he had 
willed the remainder of his property to his 
four sons, who had taken possession, and had 
no account to render to the plaintiffs. The 



70 



THE CANADA LAW JOURNAL. 



[September, 1867. 



plaintiffs then inscribed en faux against the 
will produced by the defendants. The prin- 
cipal moyens de faux were as follows :~1. 
The will did not contain the wishes of the tes- 
tator, 2. It had not been dictated by him. 
3. It was made by Valois, notary, according 
to instructions given to him by Venance Bra- 
net, and without the participation of the tes- 
tator. 4. At the date of the will, the testator 
was not of sound mind, memory, and under- 
standing, but was laboring under a disease 
^hich had deprived him of his physical and 
mental powers, and he was not in a state to 
know what he was doing. 6. The testator 
did not dictate any of the dispositions of the 
will, but they were all dicUes et nomvUea to 
the notary by Venance and Theodore Brunet. 
^. The will was not dictated to the notary in 
the presence of witnesses. The inscnption 
enfomx having been maintained by the Court 
below, the defendants appealed. 

Duval, C. J., said the judges of the Court 
were of a different opinion from the Superior 
Court, and thought that the testator was of per- 
fectly sound mind, and that the will was made 
properly. The testator, in his honor's view 
of the evidence, understood perfectly what he 
was saying. He was a man of few words^ 
but this did not show that he had not well 
considered what he was saying. 

MoNDELET, J., was also of opinion that 
there had been no sufficient grounds shown for 
setting aside the will. 

Dbfmmond, J., observed that here it was 
«learly proved that thei'e was not a word 
written before the arrival of the notary. But, 
it was said, it was a will made interrogatively, 
that is, that it was made by question and 
answer. There was no doubt that one sort of 
will made by interrogatory was null ) but there 
were two kinds of interrogatories, one leading 
questions, and the other direct enquiries for 
information. The latter was a mode of ques- 
tion not only permissible, but often absolutely 
necessary, without which it would be impos- 
sible for a notary to make a will. The judg- 
ment was as follows: — Considerant que les 
intimes n'ont fait aucune preuve legale des 
moyens de faux par eux produits au soutien 
de leur inscription en faux contre le testament 
£olennel de feu Eustache Brunet dit L'Etang, 



lequel testament 6tait invoque par les appe- 
lants dans leur defense & Taction des dits in- 
times: Considerant que les appelanta ont 
6tabli par une preuve suffisante que lore de 
r execution du dit testament le dit testateur 
6tait sain d' esprit et en 6tat d'apprecier ses 
actes, et que les dispositions qui se trouvent 
au dit testament, loin d'avoir et^ ecrites et 
mises au dit testament par le notaire Valois 
sur la dictation d'autres personnes par anti- 
cipation et hors la presence du testateur, ont 
6i4 prononc^es, d^clar^es et dict^es par le dit 
testateur lui-mSme, comme ses dernidres vo- 
lont^s, et Sorites et redig^es par le dit notaire 
en sa presence et en la presence de deux 
temoins idoines : considerant que dans le juge- 
ment il y a erreur, &c. Judgment reversed, 
and inscription en faux dismissed. 

Johnson, J., concurred. 

Dorion <S; Dcrion, for the Appellants. 

R, & G, Laflammt, for the Respondents. 



RECENT ENGLISH DECISIONS. 



Omtra^ii for Sale — Rights of Way and 
Water, — A. and B. were tenants of adjoining 
premises, under the same landlord. A. had 
a well upon his premises, from which B.'s 
premises were supplied with water by means 
of a pipe. Both premises, with others, were 
put up for sale by auction, in lots, one of the 
conditions being that each lot was subject to 
all rights of way and water and other ease- 
ments (if any) subsisting thereon. A. and 
B. both purchased the lots of which they had 
been tenants. The vendor insisted that A. 
had purchased subject to B.'s right of water. 
A. filed a bill for specific performance of the 
contract, without any liability to such ease- 
ment. Heldj that*B. had no easement or 
right of water, but merely a license from his 
landlord during his tenancy ] and that A. 
was entitled to the relief asked. Russell v. 
Harford, Law Rep. 2 Eq. 607. 

Production of Documents, — ^A case for the 
opinion of counsel, stated in reference to a 
separate litigation about the same subject- 
matter as the present dispute, and after it 
had arisen : — Held, privileged from produc- 
tion. 



September, 1867.] 



THE CANADA LAW JOURNAL. 



71 



A letter written betweeu ccnlefendants res- 
pecting a matter in litigation, with direction 
to forward it to their joint solicitor : — Heldj 
privileged from production. Jenkyns v. 
BusUby, Law Rep. 2 Eq. 547. 

Parinership — Business ofSoltciior. — ^Where 
one of a firm of solicitors received from a 
client a sum of money for which a receipt 
was given in the name of the firm, stating 
that part of the money was in payment of 
certain costs due to the firm, and that the 
residue was to make arrangements with the 
client's creditors, and the solicitor misappro- 
priated the money : — Heldf that the trans- 
action with the client was within the scope 
of the partnership business; and that the 
partners in the firm were jointly and sever- 
ally liable to make good the amount : — Held 
also, that all the partners were necessary 
parties to a suit for that purpose. Atkinson 
V. Mcuikrethj Law Rep. 2 Eq. 670. 

Corporate Plaintiff'- Foreign State, — The 
United States of America suing in the Courts 
of England, and thereby submitting them- 
selves to the jurisdiction, stand in the same 
position as a foreign sovereign, and can only 
obtain relief subject to the control of the 
Court in which they sue, and pursuant to its 
roles of practice ; according to which every 
person sued in the Court of Chancery, whether 
by an individual, by a foreign sovereign, or by 
a corporate body, is entitled to discovery upon 
oath touching the matters upon which he is 
sued. Sir W. Page Wood, V.C, remarked 
in the course of his judgment : — " The ques- 
tion in this case is one in some degree novel, 
but the general principles applicable to it are 
sufiiciently established. Where the suitor is 
an individual, although he may be the sove- 
reign of a foreign country, and may of himself 
in reality represent the whole country of 
which he is sovereign, this Court has refused 
to acknowledge him when he comes here as a 
suitor in any other capacity than as a private 
individual. It has been determined by the 
highest authority that he must conform to 
the practice and regulations for administra- 
tion of justice of the tribunals to which he 
resorts for relief; and, among other things, 
as was determined in The King of Spain v. 
Sallettj he is obliged to answer upon oath. 



It is also established that all persons sued in 
this country as a body corporate are amen- 
able to the process of the Court, and must 
answer by one or other of their officers upon 
oath, inasmuch as it is conmdered essential 
to justice that answers shall be made upon 
oath. I say essential to the interests of jus- 
tice, because I believe the only exception to 
this is in the case of the Attorney General, 
where I apprehend it arises from the dignity 
of the Crown, to which the Court is obliged 
to have regard, and, accordingly, officers of 
the Crown in this country are not put to 

make discovery upon oath What^ 

then, is to be done in the case of a bill filed 
by a political body, such as the United States 
(not a physical but a metaphysical entity),, 
proceeding as a sovereign state, and endea- 
voring to assert its rights in this country? 
Is there any reason why the defendant in the 
original suit should be deprived of those pri- 
vileges which are enjoyed by every other 
party to a suit, or why either he or the Gov- 
ernment suing here should not be dealt with 
according to the rules by which all other in- 
dividuals, including the sovereign of any other 
state, must be dealt with when they seek to 
obtain relief in this Court ? It appears to- 
me there is no sound ground for saying that 
the rule is not to be applied. There may be 
difficulties in this case in selecting the person 
who is to make the answer. It is quite im> 
possible, on any principle of analogy, to say 
that the President has been properly selected^ 
or that he is the person for whose answer 
upon oath the United States must wait before 
they proceed in their original suit. I cannot 
make any order that the proceedings in the 
original suit be stayed until the President has 
put in his answer. No doubt ways and 
means are to be found for getting the discov- 
ery sought. I can do no more than make an 
order staying proceedings until the answer of 
the United States is put in." Prioleau v. 
United States, and Andrew Johnson, Law Rep. 
2 Eq. 659. 

Freight—Assignment — Priority, — The as- 
signee of a particular freight who gave to 
the charterers notice of his security : — Held, 
entitled in priority to the general assignee 
of all fireight to be earned by the same ship^ 



72 



THE CANADA LAW JOURNAL. 



[September, 1867. 



vho was prior in date, but gave no notice, 
and took no steps to enforce his mortgage 
until after the particular assignee had given 
notice to the charterer, and the cargo had 
been in part discharged. Brown v. Tanner, 
Law Bep. 2 Eq. 806. 

Will — Falsa Demonstratio. — ^If all the words 
of description are true, and correctly describe 
a thing certain, the Court will not presume 
that there is any error, so as to extend the 
meaning of the words to something not pro- 
perly comprehended in the express words. 



In 1802, testator purchased an estate called 
A. farm, in the parish of R., in the county of 
K. In 1813 and 1815 he acquired adjoining 
land in the parishes of S. and B. in the same 
county, which was thrown into A. farm, and 
occupied therewith, and the whole thence- 
forth called A. farm. By his will, made in 
1817, he devised all his estate, consisting of 
A. &rm, in the parish of R., in the county of 
H., to trustees : — Held, that the land in the 
parishes of S. and B. did not pass by the spe- 
cific devise. Fedley v. DoddSj Law Rep. 2 
Eq. 819. 



BANKKUPTCY— ASSIGNMENTS— Pkovisces of Quebec and Oittabio. 



VAJCB 09 IKBOLVENT. 



Alexander, William > 

Allen, WUliam 

Auger, Isidore 

Belfry,IraF 

Bernard, Joseph Z6phirin. 

Blair, James 

Bond, Joseph 

Boyle, Arthur. 

Corey Brothers 

Ooulson, £dward 

Cowan, Andrew 

Crosflon, James 

Duncan, William 

Ernst, John (individually and as) 

partner of John Ernst k Son ) 

Fairman, James C 

Fay, John. 

Fraser, Francis 

Gates, Thomas Charles 

Hayes, John Joseph (individually) 

and as partner of Bury & Hayes. . J 

Huffman, Charles W 

Hutchinson, Charles 

Inman, James, of Inman Bros 

Jackson, Jonas Bertram 

Jones, William 

Kerr, John William 

Lamonreux & Fr&res. 

I/aagstaff, Miles ;;••••:•• 

Leriche, Alphonse (individually and ) 

as partner of Bapin A Leriche. . . . j 

Leeper, B. D 

Idndsay, James 

Lyon. Seth 

Madiil, Alexander 

Mavrand, George E 

Mathews, Edward 

Mclntyre, John 

Morin, Edward 

Nestor, Cornelius 

Pawling, WilUam 

Felletier, Joseph 

Phillips, William Magford 

Pooley, Henry 

fiohertson, John 

Bobinson, Bobert 

Bowell, Joseph 

Bttssell, George Hiram 

St. Jean, Loiub G 

Schoenlank, Samuel 

Shaw, Joseph E 

Stephens, Charles Nelson 

Stevenson, CharlesN 

Whitworth, William Brown 



RESIDEirOB. 



Montreal 



Wendover 



Smith's Falls. 



Stanbridge Station 

Township of Blanshard . . 



Cobourg . 
Goderich. 



Montreal 
Montreal 



Montreal 



Stratford. 



Montreal 



St. Jean ChrysoetOme. . . . 



St.B^mi. 



Seaforth 

St. Anne de la Pocati^re. 



Sorel. 



Ottawa.. . 
Montreal 



Gasp6 Basin. 



ASSIOITEX. 



S.C.Wood 

A B. Stewart.... 
J. Amyrould. . .. 
Joseph Bogers... 
N. B. Desmarteau 

W. Collins 

Wesley Tennant . 
W.Ajtittlekerger 
PhflipS.Boss.... 

Thos. Miller 

James Holden . . . 
E. A. Maonaohtan 
S. Pollock 

Alex. McGregor. 

S. C. Wood 

T. Sauvageau. . . . 

John Whyte 

Bobert Watson... 

A. B. Stewart... 

J. Parker Thomas 
Thos. Ohurcher. . 

Thos. MiUer 

Bichard Monck. . 
Joseph Hnrssell. . 

John Barr 

T. Sanviueau. . . . 
Bichard Monck. . 

T.S.Brown 

Thomas McLean. 
John Stewart. . . . 

B. M. Bose 

Margaret Madiil . 

T. Sauvageau 

A. J.Domy 

S. Pollock 

T. Sauvageau. . . . 
WJ^ Jiittlebeiger 
W.AJkIittleberger 

G. L Barthe 

W. S. Williams. . 

C. S. Hayman.... 

A.W.Smith 

George Stevenson 
Thos. Chnrcher. . 
Francis Clemow . 
T. Sauvageau.... 

John Kerr 

James J. Lowndes 
Joseph Bogers. . . 
W.AJIiittleoerger 
George J. Gale.. 



BSSIDEKOE. 



Lindsay 

Montreal 

Granby 

Barrie 

Montreal 

Walkerton... 

Almonte 

St. Catharines 

Montreal 

Stratford .... 
Uxbridge. . . . 
Cobourff. .... 
Goderich 

Gait 



Lindsay.. 
Montreal. 
Montreal. 
Montreal. 

Montreal. 



BeUeville . . 

London 

Stratford... 
Chatham. . . 



Hamilton. . 
Montreal... 
Chatham..., 

Montreal... 



Brantford.... 
Dunnville. ... 

Kingston 

Peterborough 

Mantreal 

Simooe 

Goderich 

Montreal 

St Catharines 
St. Catharines 

Sorel 

Napanee 

Toronto 

Brantford. . . . 

Samia 

London 

Ottawa. ..... 

Montreal 

Toronto 

Gasp6 Basin . 

Barrie 

St. Catharines 
Owen Sound. 



DATE OF vo- 

TIOB TO FILE 

CLAIMS. 



Aug. 10th. 
Sept. nth. 
Sept. 2nd. 
Sept. 19th. 
Sept. 16th. 
Aug. 26th. 
Sept. 18th. 
Sept. nth. 

Aug. aoth. 

Aug. 27th. 
Aug. 27th. 
Sept. nth. 
Sept. 12th. 

Aug. 27th. 

Sept 18th. 
Sept. 2nd. 
Sept. lOth. 
Sept. 4th 

Aug. 24th. 

Aug. 24th. 
Aug. 24th. 
Sept. 4th. 
Aug. 28rd. 
Aug. 26th. 
Sept nth. 
Sept. 18th. 
Sept 7th. 

Sept 18th. 

Sept. 13th. 
Aug. aoth. 
Sept 7th. 
Aug. 26th. 
Se^. 7th. 
Sept. 10th. 
Sept. 4th. 
Aug. 22nd. 
Sept. 14th. 
Sept nth. 
Aug. 17th. 
Sept. 10th. 
Sept. 10th. 
Aug. 22nd. 
Aug. 24th. 
Aug. dist. 
Aug. 28th. 
Se^. 4th. 
Sept. 17th. 
Sept. 5th. 
Sept 4th. 
Sept. 14th. 
Sept 9th. 



October, 1867.] 



THE CANADA LAW JOURNAL. 



73 



YoL.ni. OCTOBER, 1867. No. 4. 

ADMISSIONS TO LEGAL STUDY. 

The number of candidates presenting them- 
selves for admission to the study of the law 
exhibits a marked decrease since the passing 
of the Amended Act respecting the Bar. 
This may be partly owing to the higher stan- 
dard of qualification required, but must also, 
undoubtedly, be attributed, in great measure, 
to the recent increase in the admission fee. 
Perhaps nothing could better demonstrate the 
necessity for some step towards closing the 
flood gates of the profession, than the fact that 
scores of young men have been turned aside 
Irom presenting themselves, by the addition 
of a few dollars to the admission fee. 

With respect to admissions to practice, one 
would not expect to see much change until 
those already admitted to study have, in the 
course of time, all passed into the ranks of 
the profession, and the new system has come 
into full operation. Nevertheless, a consider- 
able £Eklling oft is already apparent — ^a result 
due, no doubt, to the more rigorous examina- 
tion to which candidates are now subjected. 

The list of admissions in Montreal at 
the last two Quarterly Examinations is as 
follows: — 

JUNE 1867. 

ADMITTED TO PRACTICE: — W. A. Lay, A. 

E. Mitchell, C. E. Garmel, L. A. Garmel, Asa 
Gordon, Wm. E. Bullock, Edw. Holton, Pierre 
Brouillet. 

ADMITTED TO STUDY: — P. Lauctot,, T. F. 

Wood, A. Davies, C. B. Devlin, A. Forget. 

SEPTEMBEB, 1867. 

ADMITTED TO PRACTICE : — L. J. Desautels, 
C. F. Bouthillier, A. Dalbec, H. E. Poulin, 
M. Souligny, J. Beaupre, A. J. A. Charland, 
C. Lalime, J. A. Quinn, W. D. Drummond, 
Abel Adams. 

ADMITTED TO STUDY :— Ed. Larcau, J, S. 
Perrault, H. Bouthillier. 



JUDICIAL PENSIONS. 

To the Editor of the Canada Law Journal : 

Mr. Editor: — Among the many matters 
which are being suggested for the considera- 
tion of the first Parliament of the Dominion, 
will you allow me to add one, which does not 
seem to me least in importance : I refer to the 
regulations respecting the pensioning of 
Judges. In England the Bench is liberally 
dealt with in this respect, but the state of 
things in the Province of Quebec reveals a 
mesquinerie unworthy of a civilized country. 
It is even now stated, and correctly I believe, 
that the resignation of one of the ablest of our 
judges, tendered five months ago, has not yet 
been accepted, because there is no pension 
vacant which can be applied to the purpose. 
Meantime the Appeal Bench is left with four 
judges. In the same way, the Superior Court 
at Montreal sufifers from the absence of a 
judge. These facts require no comment. 

Yours, 

X. E. B. 



LAW EEFORM IN ENGLAND. 

We have already noticed the appointment 
of a Commission in England to consider the 
practicability of compiling a Digest of the 
Law, and have reproduced the interesting 
report presented by the learned members of 
the Commission. A second Commission has 
now issued on the subject of the Court of 
Chancery and Courts of Law. The persons 
appointed are. Lord Justice Cairns, Sir Wil- 
liam Erie, late Chief Justice of Common 
Pleas, Sir J. P. Wilde, Judge of the Court of 
Probate and Matrimonial Causes, Vice-Chan- 
cellor Wood, Mr. Justice Blackburn, of the 
Queen's Bench, Mr. Justice Montague Smith 
of the Common Pleas, Sir J. B. Karslake 
Attorney-General ; Sir Roundell Palmer, W. 
M. James, Q. C, J. R. Quain, Q. C, and H. 
C. Rothery, A. S. Ayrton, G. W. Hunt, H. 
C. E. Childers, John Hollams, and F. D. 
Lowndes, Esquires. The task assigned to the 
Commission is, " to make diligent and full 
inquiry into the operation and effect of the 
present constitution of our High Court of 
Chancery of England, our Superior Courts of 



74 



THE CANADA LAW JOURNAL. 



LOctober, 1867, 



Common Law at WestmiDster, our Central 
Criminal Court, our High Court of Admiralty 
of England, the Admiralty Court of our 
Cinque Ports, our Courts of Probate and of 
Divorce for England, the Courts of Common 
Pleas of our Counties Palatine of Lancaster 
and of Durham respectively, and the Courts 
of Error and of Appeal from all the said seve- 
ral Courts, and into the operation and effect 
of the present separation and division of juris- 
dictions between the said several Courts. 
And also into the operation and effect of the 
present arrangements for holding the sittings 
in London and Middlesex, and the holding of 
sittings and assizes in England and Wales, and 
of the present division of the legal year into 
terms and vacations ; and generally into the 
operation and effect of the existing laws and 
arrangements for distributing and transacting 
the judicial business ofthe said Courts respec- 
tively, as well in Court as in Chambers, with 
a view to ascertain whether any and what 
changes and improvements, either by uniting 
and consolidatiDg the said Courts, or any of 
them, or by extending or altering the several 
jurisdictions, or assigning any matters or 
causes now within their respective cognizance 
to any other jurisdiction, or by altering the 
number of judges in the said Courts, or any 
of them, or empowering one or more judges 
in any of the said Courts to transact any kind 
of business now transacted by a greater num- 
ber, or by altering the mode in which the 
business of the said Courts, or any of them, 
or ofthe sittings and assizes, is now distribu- 
ted or conducted, or otherwise, may be ad-* 
vantageously made so as to provide for the 
more speedy, economical, and satisfactory 
despatch of the judicial business now trans- 
acted by the same Courts and at the sittings 
and assizes respectively. And, further, to 
make inquiry into the laws relating to juries, 
especially with reference to the qualifications, 
summoning, nominating, and enforcing the 
attendance of jurors, with a view to the better, 
more regular, and more efficient conduct of 
trials by jury, and the attendance of jurors at 
such trials." 

The Commissioners are authorized to exam- 
ine the officers of the respective Courts as 
witnesses, and are to report within nine months 



from the 18th of September, date of issuing 
the Commission. 



NOTICES OF NEW PUBLICATIONS. 

The American Law Review, October. Lit- 
tle, Brown & Co., Boston. — This is the first 
number ofthe second volume. The contents 
of the current number show no falling off in 
interest. An able article on '^ Liability as 
partner" advocates that the participant of 
partnership profits should be exempt from lia- 
bility in the Ave cases enumerated in the Eng- 
lish Statute of 1866, viz : when such profits 
are received as a remuneration for the use of 
money lent a partnership ; when they are re- 
ceived in addition to, or in lieu of, wages for 
labour performed in the capacity of servant 
or agent ofthe partnership; when they are 
received by way of annuity, in case the parti- 
cipant be the widow or child of a deceased 
partner j and when they are received by way 
of annuity in consideration of the sale of the 
good will of a business to a partnership ; and 
in addition to these five instances, ^' generally^ 
when the participant is not in fact a partner, 
and has not held himself out as such to cre- 
ditors, and has not also, either secretly or 
fraudulently, enabled others to gain false cre- 
dit by any act of his." 

Five and twenty pages of the Review are 
devoted to a memoir of the late Chief Justice 
Shaw, for thirty years Chief Justice of Mas- 
sachusetts, who died in 1861, just at the com- 
mencement of the civil war. This is followed 
by a notice of "A Book about Lawyers," of 
which we reproduce a part in the present 
number. 

The American Law Reoister, October. 
D. B. Canfield & Co., Philadelphia.— The 
present number closes the current volume of 
this able monthly, which has been sixteen 
years in existence. An interesting letter, writ- 
ten by Dr. Lieber to a member ofthe famous 
constitutional convention, appears in our pre- 
sent issue. 

The Upper Canada Law Journal, October. 

W. C. Chewett & Co., Toronto.— The last 

number contains the second part of an article 

I on the Marriage Laws, with reference to the 



October, 1867. 



THE CANADA LAW JOURNAL. 



T5 



important question mooted of Roman Catho- 
lic marriages without banns or license. 

The New Dominion Monthly, October and 
November, Montreal. — Although it is hard- 
ly in our way to notice publications not of a 
legal character, we cannot forbear express- 
ing our satisfaction at this attempt to diffuse a 
cheap and healthy literature, somewhat after 
the style of the Messrs. Chambers' publica- 
tions. The first two numbers are exceedingly 
well got up, and the publication has already 
attained a very wide circulation. 

The New York Transcript. — Besides 
being the organ of the municipal govern- 
ernment, the N, Y. Daily Transcript is a law 
newspaper — the only daily law journal we 



have yet seen — containing a large selection of 
English and American cases. 



APPOINTMENTS. 

Major General Charles Hastings Doyle, to 
be Lieutenant Governor of Nova Scotia, and 
Deputy Governor for the signing of marriage 
licenses. (Gazetted 18th October, 1867.) 

Colonel Francis Pym Harding, C. B., to 
be Lieutenant Governor of New Brunswick, 
and Deputy Governor for the signing of mar- 
riage licences. (Gazetted 18th of October, 
1867). 

Ovide Leblanc, Esq., N. P., to be clerk of 
the Circuit Court, in and for the County of 
Pontiac, District of Ottawa. 



BANKRUPTCY— ASSIGNMENTS— Provimces of Quebec and Ontabio. 



If AJCB OF IKSOLVEITT. 



Ainesse, Pierre, jun 

Batty, Benjamin 

Beauparlant, Hercuie ...«••• 

fiigeer. George 

radlc 



MiteheU . . . 
UawksYille. 



Bradley, John. 

Campbell, Alex. William . 

Cheeseman, Thomas 

Empej, Michael Peter — 
Fr^, Allan Benjamin — 
Kitchen, Timothr Culver. 
James, Thomas Albert — 

McCoU, Donald ^r , _x 

Palmer, Coryden p-ieamington 

Bobinson, John 

Terreberry, Samuel 

Watley, Thomas 

Wright, George, & Son. 



RESIDENCE. 



Lachine 

Hamilton 

St.Aim* 

Township of Grey. 



Hamilton. 



THE UNANIMITY OF JURIES. 

The following is a letter from Dr. Francis 
LiEBER to a member of the New York Consti- 
tutional Convention, revised, with additions, 
by the author. We take it from the American 
Law Register for October : — 

Dear Sir, — Observing in the papers that you 
have proposed in the Convention to abolish 
the unanimity of jurors as a requisite for a 
verdict in civil cases, I beg leave to address 
to you a few remarks on a subject which has 
occupied my mind for many years, and which 
I consider of vital importance to our whole 
administration of justice. Long ago I gave 
(in my Civil Liberty and Self-Government) 



ASSIGNEE. 



T.S.Brown 

J. J. Mason 

T. S. Brown 

S. PoUock 

Thomas Clarkson 
Alex. McGreeor. 
Thos. Miller ..... 
H. F. J. Jackson. 
W. S.Kobinson.. 

A. J.Donly 

J. J. Mason 

Nelson W. Moore 

J. McCrae 

A. W. Smith 

W.A.Mittleberirer 
Wm. Yelland. . . 
Alex. McGregor 



BESIDESOE. 



Montreal 

Hamilton 

Montreal 

Goderich 

Toronto 

Gait 

Stratlbrd 

Berlin 

Napanee 

Simcoe 

Hamilton 

St. Thomas,.. 

Windsor 

Brantford 

St. Catharines 
Peterborouffh 
Gait 



DATE OF NO- 
TICE TO FILE 
CLADC8. 



Sept. 26th. 
Sept. 23rd. 
Sept. 25th. 
Sept. 10th. 
Sept. 20th. 
Sept. 19th. 
Sept. 24th. 
Sept. 28rd. 
Sept aoth. 
Sept. 24th. 
Sept. 17th. 
Sept. 21st. 
Sept. 16th. 
Sept. 23rd. 
Sept. aoth. 
Sept. 19th. 
Sept. 26th. 



some of the reasons which induced me to dis- 
agree with those jurists and statesmen who 
consider unanimity a necessary, and even a 
sacred element of our honoured jury trial. 
Further observation and study have not only 
confirmed me in my opinion, but have 
greatly strengthened my conviction that the 
unanimity question ought to be given up, if 
the jury trial is to remain in harmony with 
the altered circumstances which result from 
the progress and general change of things. 
Murmurs against the jury trial have occasion- 
ally been heard among the lawyers, and it is 
by no means certain that without some change 
like that which I am going to propose, thd 



76 



THE CANADA LAW JOURNAL. 



[October, 1867. 



trial by jury, one of tlie abutments on which 
the arch of civil liberty rests, can be prevented 
from giving way in the course of time. 

The present constitution of our state per- 
mits litigants to waive the jury, in civil 
cases, if they freely agree to do so. This 
would indicate that the adoption of verdicts 
by a majority of the jurors, in civil cases, 
would not meet with insuperable difficulty ; 
but it seems to me even more important and 
more consonant with sound reasoning to 
abandon the unanimity principle in penal 
cases. The administration of justice is a 
sacred cause in all cases, and the decision 
concerning property and rights, and, fre- 
quently, the whole career of a man, or the 
fate of an orphan, is, indeed, sufficiently 
important not to adopt the majority principle 
in jury trials, if it implies any lack of protec- 
tion, or if there is an element of insecurity in 
it; and if there is not, then there are many 
reasons, as we shall see, why it ought to be 
adopted in criminal cases as well as in civil. 

At the beginning of my " Reflections,'^ I 
stated the different reasons of the failure of 
justice in the present time. Circumstances 
obliged me to write that pamphlet in great 
haste, in which I forgot to enumerate among 
these causes the non-agreement of jurors. It 
would be a useful piece of information, and 
an important addition to the statistics of the 
times, if the Convention could ascertain, 
through our able state statistician, the percent- 
age of failures of trials resulting from the non- 
agreement of jurors in civil, in criminal, and 
especially in capital cases. This failure of 
agreement has begun to show itself in England 
likewise, since the coarse means of forcing 
the jury to agree, by the strange logic of 
hunger, cold, and darkness, has been given 
up. 

In Scotland no unanimity of the jury is 
required in penal trials ; nor in France, Italy, 
Germany, nor in any country whatever, 
except England and the United States ; and 
in the English law it has only come to be 
gradually established in the course of legal 
changes, and by no means according to a 
principle clearly established from the begin- 
. ning. The unanimity principle has led to 
strange results. Not only were jurors for- 



merly forced by physical means to agree in a. 
moral and intellectual point of view, but in 
the earlier times it happened that a verdict 
was taken from eleven jurors,|if they a^eed) 
and the "refractory juror" was committed 
to prison I* (Guide to English Juries, 1682). 
I take the quotation from Forsyth, History 
of Trial by Jury, 1862. 

Under Henry H. it was established that 
twelve jurors should agree in order to deter- 
mine a question, but the "afibrcement" of 
the jury meant that as long as twelve jurors 
did not agree, others were added to the panel, 
until twelve out of this number, no matter 
how large, should agree one way or the other. 
This was changed occasionally. Under Ed- 
ward in. it was " decided" that the verdict 
of less than twelve was a nullity. At present, 
in England, a verdict from less than twelve is 
sometimes taken by consent of both parties. 
There is nothing, either in the logic of the 
subject, or the strict conception of right, or 
in the historic development of the rule, that 
demands the unanimity of twelve men, and 
the only twelve men set apart to try a cause 
or case. 

At first the jurors were the judges them- 
selves, but in the course of time the jury, as 
judges of the fact, came to be separated from 
the bench as judges of the law, in the gra- 
dual development of our accusatorial trial, 
as contra-distinguished from the inquisitorial 
trial. It was a fortunate separation, which 
in no other country has been so clearly per- 
fected. The English trial by jury is one of 
the great acquisitions in the development of 
our race, but everything belonging to this 
species of trial, as it exists at present, is by no 
means perfect ; nor does the trial by jury 
form the only exception to the rule that all 
institutions needs must change or be modified 
in the course of time, if they are intended to 
last and outhve centuries, or if they shall not 
become hindrances and causes of ailments 
instead of living portions of a healthy organ- 
ism. 

The French and German rule, and, I be- 

* We have some doubts about the veracity of the 
stories told of the treatment of refractoiy Jurors. Per- 
haps some of our readers fond of Notesfand Queries 
can instruct us on this point.— Ed. L. J. 



October, 1867.] 



THE CANADA LAW JOURNAL. 



77 



lieve, the Italian also, is, that if seven jurors 
are against five, the judges retire, and if the 
bench decides with the five against the seven, 
the verdict is on the side of the Ave, If eight 
jurors agree against four, it is a verdict, in 
capital as well as in common criminal cases. 
There is no civil jury in France, Germany, 
Italy, Belgium, or any country on the conti- 
nmt of Europe. 

This seems to me artificial, and not in har- 
mony with our conception of the judge, who 
stands between the parties, especially so when 
the State, the Crown, or the people, is one of 
the two parties ] nor in harmony with the 
important idea (although we Americans have 
unfortunately given it up in many cases) that 
the judges of the fact and those of the law 
must be distinctly separated. The judge, in 
the French trial, takes part in the trying, 
frequently offensively so. He is the chief 
interrogator ; he intimates, and not unfre- 
quently insinuates. This would be wholly 
repugnant to our conceptions and feelings; 
and may the judge for ever keep with the 
American and the English people his inde- 
pendent, high position between and above the 
parties I 

On the other hand, what is unanimity 
worth when it is enforced ; or when the 
jury is "out" any length of time, which 
proves that the formal unanimity, the out- 
ward agreement, is merely accommodative 
unanimity, if I may make a word ? Such a 
verdict is not an intrinsically truthful one ; 
the unanimity is a real "afforcement," or 
Artificial. Again, the unanimity principle 
puts it in the power of any refractory juror, 
possibly sympathizing more with crime than 
with society and right, to defeat the ends of 
justice by "holding out." Every one re- 
members cases of the plainest and of well- 
proved atrocity going unpunished because of 
one or two jurors resisting the others, either 
from positively wicked motives, or some 
mawkish reasons which ought to have pre- 
vented them from going into the jury-box 
altogether. 

I ask, then, why not adopt this rule : IJach 
Wy shall consist of twelve jurors^ the agree- 
^nmt of two-thirds of whom shall he sufficient 
for a verdietj in all casesj both civil andpenalj 



except in capital cases, when three-fourths must 
agree to make a verdict valid. But the fcre- 
manj in rendering the verdict, shall state how 
many jurors have agreed. 

I have never heard, nor seen in print, any 
objection* to the passage above alluded to, 
in which I have suggested the abandoning of 
unanimity, other than this : that people, the 
criminal included, would not be satisfied with 
a verdict, if they knew that some jurors did 
not agree. As to the criminal, let us leave him 
alone. I can assure all persons who have 
investigated this subject less than I have, 
that there are very few convicts satisfied with 
their verdict. 

The worst among them will acknowledge 
that they have committed crimes indeed, but 
not the one for which they are sentenced, or 
they will insist upon the falsehood of a great 
deal of the testimony on which they are con- 
victed, or the illegality of the verdict. 

The objection to the non-unanimity princi- 
ple is not founded on any psychological 
ground. How much stronger is the tact that 
all of us have to abide by the decision of the 
majority in the most delicate cases, when 
Supreme Courts decide constitutional ques- 
tions, and we do not only know that there 
has been no unanimity in the Court, but when 
we actually receive the opinions of the minor- 
ity, and their whole arguments, which always 
seem the better ones to many, sometimes to a 
majority of the people ! Ought we to abolish, 
then, the publication of the fact that a majo- 
rity of the judges only, and not the totality of 
them, agreed with the decision? By no 
means. Daniel Webster said in my presence 
that the study of the Protests in the House 
of Lords (having been published in a separate 
volume) was to him the most instructive 
reading on constitutional law and history. 
May we not say something similar concern- 



* One ol^jeotioii is probably the lurking opinion in 
the minds of most people that the majority are not 
always right, and therefore (while we retain the pen- 
alty of death on our statute-book) the chances of the 
execution of innocent men would be largely increased. 
Indeed, Dr. Lieber seems not to be wholly free from 
this idea, when he proposes the arbitrary and clumsy 
expedient of requiring nine instead of eight to concur 
in capital cases.— Ed. Law Joosval. 



78 



THE CANADA LAW JOURNAL. 



[October, 1867. 



ing many opinions of the minority of our 
supreme benches? 

By the adoption of the rule which I have 
proposed, the great principle that no man's 
life, liberty, or property shall be jeoparded 
twice by trials in the Courts of justice, would 
become a reality. At least, the contrary 
would become a rare exception. Why do all 
our constitutions lay down the principle that 
no one shall be tried twice for the same 
offence ? Because it is one of the means by 
which despotic governments harass a citizen, 
under disfavour, to try him over and over 
again ; and because civil liberty demands 
that a man shall not be put twice to the 
vexation^ expense, and anxiety for the same 
imputed offence. Now, the law says, if the 
jury finds no verdict it is no trial, and the 
indicted person may be tried over again. In 
reality, however, it is tantamount to repeated 
trial, when a person undergoes the trial, less 
only the verdict,, and when he remains unpro- 
tected against most of the evils and dangers 
against which the Bill of Eights or Constitu- 
tion intended to secure him. This point, 
namely, the making of the noble principle in 
our constitution a reality and positive actual- 
ity, seems to me a most important motive 
why we should adopt the measure which I 
respectfully, but very urgently, recommend to 
the Convention. So long as we retain the una- 
nimity principle, so long shall we have what vir- 
tually are repeated trials for the same offence. 

In legislation, in politics, in all organiza- 
tions, the unanimity principle savours of bar- 
barism, or indicates at least a lack of deve- 
lopment. The United States of the Nether- 
lands could pass no law of importance ex- 
cept by the unanimous consent of the States 
General. A single voice in the ancient 
Polish Diet could veto a measure. Does not, 
perhaps, something of this sort apply to our 
jury unanimity ? 

Whether it be so or not, I for one am con- 
vinced that we ought to adopt the other rule 
in order to give to our verdicts the character 
of perfect truthfulness, and to prevent the 
frequent failures of finding a verdict at all. 
I am, with great respect, dear Sir, your obe- 
dient, Francis Lieber. 

New Yore, June 26thj 1867. 



MICHAELMAS TERM IN ENGLAND. 

November is not a pleasant month, either 
for contemplation in the prospect or to en- 
dure in fog. The month commences badly, 
for on the first of the month the municipal 
year begins, and civic strife is waged in a 
thousand boroughs. ''Thus bad begins, but 
worse remains behind," for on the second day 
the legal world commences the year of litiga- 
tion, and the Lord Chancellor gives a break- 
fast to Judges and Queen's Counsel. How 
pleasantly that breakfast passes off we are 
never permitted to know, for the institution 
is shrouded from the gaze of the profane, and 
even from the outer world that knows not 
silk at the bar. In public, lawyers attempt to 
make jokes, and sometimes a judge does 
really say something so funny as to cause a 
loyal laugh from the bar and a titter from the 
audience. Whether amongst themselves the 
lawyers joke, whether they are as grave as 
judges and advocates profess to be on crimi- 
nal trials, or whether Mr. Sergeant Eglantine 
and Mr. Pipkins do say the sharp things 
which they occasionally inflict upon juries is 
beyond our knowledge; and perhaps we are 
as well without the knowledge, for if it should 
cost as much to hear what is said on a festive 
occasion as it costs in Westminster Hall, the 
game would not be worth the candle. We are 
proud of our laws and our admirable system 
of jurisprudence, but we are not proud of our 
lawyers. Law is so cheap in theory, so costly 
in practice, that it would be the merest affec- 
tation of gratitude to say that we are proud of 
the officers of the law. It is doubtless a great 
profession, and has produced, or rather 
afforded a career for some very great men, 
but it is probable that men like Mansfield, 
Hardwicke, Lyndhurst, and Brougham would 
have carved out for themselves great names 
even if no such thing as law had existed. It 
is only fair, however, to admit that the law- 
yers will contrast favourably with the mem- 
bers of any other profession. They work as 
hard as medical men, except in the long va- 
cation, very much harder than the clergy, 
and nearly as hard as the professional politi- 
cian, when he is out of office. It is rather a 
mockery, certainly, that the great magnates 
of the law should begin with a breakfast and 



. .": 1 



X)ctober, 1867.] 



THE CANADA LAW JOURNAL. 



79 



oome so leisurely down to Westminster Hall 
where many very anxious suitors are waiting 
in order to learn their fate as to the new 
trials, which if refused, may lead to ruin. 
The dignitaries think otherwise, and so they 
breakfast very pleasantly at the expense of 
the holder of the Great Seal, who may never 
have the pleasure of entertaining his contem- 
poraries again, under which gloomy prospect 
he is sustained hy the certainty of a retiring 
pension. 

The cominencement of the legal year is a 
great event in the eyes of young barristers 
who have just been called, and the country 
cousins who have come up to town to see the 
sights. To witness the Lord Chancellor and 
the Judges going down in procession, is only 
second to witnessing the Lord Mayor* s show. 
Country cousins have seen two judges on cir- 
cuit accompanied by the High Sheriff and his 
chaplain and perhaps also by "javelin men," 
but to see no less than twenty-one judges all 
in their full-bottomed wigs and ermine, cheer- 
ful and contented like well fed men going to 
their amusement, gives a country cousin a 
very different idea of the law than he enter- 
tained in the country. The very knowing ones 
never care to see the whole bench of judges, 
but to witness the new judges going for the 
first time to Westminster Hall, and as the 
judges of the Court of Exchequer approach, 
the gaze of the curious is naturally directed 
towards the new Lord Chief Baron,* Sir Fitz- 
roy Kelly, who late in life, after more than 
forty years practice at the bar, has ascended 
the judicial bench, from which a variety of 
contingencies had contributed undeservedly to 
exclude him. The length of Sir Fitzroy's 
Kelly's Ufe at the bar is such that he had 
seen all his contemporaries either seated on 
the bench or removed altogether from the 
scene. Sir William FoUett, the most gentle- 
manly and successful advocate, and Sir Cress- 
well Cresswell, the most sarcastic of judges, 
were called about the same time and were 
competitors for the honours of the bar with 
Sir Fitzroy Kelly, Sir Frederick Pollock, and 
Sir Frederick Thesiger. In their prime at 
the bar they represented a brilliant age, bril- 

* This was written in November of last year. 



liant so far as the law ever can be. Their 
names are associated with the great criminal 
and civil trials which live in the memories of 
the present generation. There are few who 
have not heard, and many who have read the 
trial of Thurtell for the murder of Weare, but 
few remember that the present Lord Chan- 
cellor was one of the counsel on that trial. 
We remember how Sir Frederick Pollock de- 
fended Frost, Williams, and Jones against a 
powerful bar, led by Sir John Campbell and 
Sir Thomas Wilde. Sir Fitzroy Kelly was 
counsel for Tawell, whose trial first proved 
the use of the telegraphic wires in the detec- 
tion of crime. In every shipping case of im- 
portance, the name of Sir Cresswell Cresswell 
appeared, and whenever a high-minded and 
chivalrous style of advocacy was required. Sir 
William FoUett was sought by both parties. 
The names which figure to-day in our reports 
are the names of inferior men who have not 
had the great advantages enjoyed by the great 
advocates we have named of being concerned 
in the great trials of the last generation. 

In contrast to the long and solid length of 
service at the bar, which is closed by a well- 
merited elevation, comes the promotion of 
Lord Justice Cairns, who, at a comparatively 
early age, leaves the contentions of the forum 
for the statuesque position of Justice in the 
Court of Appeal. No ordinary man ought to 
have succeeded a judge so profound and so 
original as Sir James Lewis Knight Bruce ] 
and Sir Hugh Cairns is not an ordinary man, 
either as a lawyer, an advocate, or an orator. 
In a parliamentary career of only fourteen 
years he took the highest place ever occupied 
by lawyers in the House of Commons, and in 
the same period he won his way to the front 
rank of his profession. A very high order of 
intellect is required at the equity bar, and 
only men of the highest intellectual calibre 
ever attain, the highest eminence. Sir Hugh 
Cairns hatd to make his way in spite of the 
fact that Mr. Bethell, Mr. Roundell Palmer, 
and Mr. Rolt were all before him in the race, 
and all enjoyed eminence, and deservedly so, 
too, before his claims were even considered 
by the attorneys. There is something, how- 
ever, in parliamentary success which leads 
on to fortune. A man who can make the 




80 



THE CANADA LAW JOURNAL. 



[October, 1S67. 



great special jury of the House of Commons 
listen to liim at the least, and applaud him 
too, is sure to be listened to with respect in 
Lincoln's Inn, and at the bar of the House of 
Lords. In the full play of his forensic and 
parliamentary powers Sir Hugh Cairns leaves 
the scene compelled, it is said, by considera- 
tions of health. Mr. Bolt, considerably the 
senior of Sir Hugh Cairns, and not a whit the 
inferior of any man as an equity lawyer, ap- 
pears in the long vacation as Attorney-Gene- 
ral. It may be open to question whether our 
courts will now compare with what they once 
were, for we have had some few disappoint- 
ments in recent elevations. There are, how- 
ever, still some great lawyers at the bar for 
whose elevation we may confidently look, and 
some great advocates who, if the occasion 
« were to arise, would shed a lustre upon the 
annals of the bar. We hope that Mr. Bolt 
will signalise his advent to office by safutary 
law reforms, than whom no man is better able 
than he to introduce. The improvement we 
most of all require is the reduction of the fees 
which go so largely to increase costs — the 
most terrible of all the incidents in litigation, 
except "the law's delay." A great reformer 
would sweep the fees away which now hamper 
our system, and so really bring justice to 
every man's door. 



A BOOK ABOUT LAWYEBS.* 

{From the American Law EeHew,) 

This is verily the gossip of the bar. Lawyers 
pass their lives in discussing the aflfairs of 
others: here their own are minuted. The 
legal profession entails upon its members an 
intimate knowledge of the virtues, the vices, 
the foibles, the weaknesses, the habits, at home 
and abroad, of the rest of the world. They 
are even called on to become familiar with the 
little peculiarities and eccentricities of lay- 
men, who come to them for advice, and en- 
trust to them their family secrets, who, unlock- 
ing their closets, invite an inspection of the 
skeletons within. Now, the profession, of 
course, has no skeletons, for it is forced to see 
so many belonging to others, that it finds bet- 

*B7 John Cordy Jeaflfi^on, Barristeivat-law. In two 
volumes. London : Hurst & Blackett, 1867. 



ter things to lock up^ whether in its closets at 
home, or safes at the office -, but it has its his- 
tory, little as well as great, with a strong and 
a weak side; and little, odd nooks and cor- 
ners and by-ways, alleys and back doors, as 
well as the great, broad stone front of solid 
grandeur and respectability, which it presents 
to an admiring public. Mr. Jeafireson has 
chosen to make these smaller matters the sub- 
ject of his book. Enough to say, he has 
treated this subject quite cleverly, and has 
managed to fill two volumes, of nearly feur 
hundred pages each, with entertaining and 
amusing talk about English lawyers. They 
are presented in almost every conceivable cir- 
cumstance, from the cradle to the grave. 
" Lawyers in Arms " is the title of one of his 
chapters ; and such is the comprehensiveness 
of the work, that one is rather surprised to 
find that it is the arms of Mars, and not those 
of Lucina, that are referred to. Lawyers at 
the bar and on the bench, on foot and in the 
saddle, at home and abroad, at their tables, 
in their chambers, in the House of Commons ; 
lawyers in love, lawyers on the stage, mar- 
ried lawyers, hen-pecked lawyers; lawyers 
pleading, singing, fighting, jesting, dying. We 
are even told what they wore, what they ate 
and drank, when they rose, and when they 
went to bed. A curious entertainment this. 
The muse is not great and high and inspiring. 
There are no battles, and statesmanship, and 
things of nations ; less of the heroic, perhaps, 
because the sight is from a valet de cham- 
bre's stand point. Those erect and digni- 
fied old gentlemen, whom we see in the old 
prints, with the fine black eyes and full-bot- 
tomed wigs, have removed these tedious cov- 
erings with their flowing robes. My Lord 
High Chancellor Eldon, becomes ''handsome 
Jack Scott," and elopes with pretty Miss 
Bessy Surtees, of Newcastle. LordThurlow is 
no longer the savage old peer, with overhang- 
ing white eyebrows, giving from the woolsack 
that justly celebrated reproof to the Duke of 
Grafton, which American schoolboys delight 
to declaim J but *' lazy, keen-eyed, loquacious 
Ned Thurlow," perplexed where to find a 
horse on which to ride his first circuit, tak- 
ing the animal on trial, riding him the circuit, 
and returning him on its completion, '* be-^ 



October, 1867.] 



THE CANADA LAW JOURNAL 



81 



cause the aaimal, notwithstanding some good 
points, did not altogether suit him." 

It is the leading principle of English profes- 
sional etiquette, that the client must consult 
the barrister only through the medium of an 
attorney ] but in the days of Sir Matthew Hale, 
and even long afterwards, this was far from 
being the case. At this time, clients were in 
the habit of addressing their counsel personal- 
ly, and taking their advice ; and, in the seven- 
teenth century, almost always insisted on hay- 
ing personal interviews : and though their at- 
torneys or solicitors usually conducted them 
to the counsel's chambers, and were present 
during the conference, no member of the in- 
ferior branch of the profession deemed himself 
afironted or ill-used if a client chose to confer 
with his advocate without the presence of a 
Ihiid person. Long, too, in the eighteenth 
century, barristers were in the habit of acting 
without the co-operation of attorneys, in cases 
where no process required the employment of 
the latt.er. "They were accustomed," says Mr. 
Jeaffreson, " to receive their lay clients in the 
coffee houses fast by Westminster hall and 
the Inns of Court ; just as the eighteenth cen. 
tury physician used to sit at an appointed hour 
of each day in his public coffee-room, and write 
prescriptions for such patients as came to 
consult him, while he drank his wine." The 
reader will recollect that in one of the series 
of Hogarth' s pictures of ' ' Marriage A la Mode, ' ' 
the young barrister, afterwards the lover and 
seducer of the wife, sits by and superintends 
the execution of the marriage settlement ; an 
office which professional etiquette would de- 
bar an English barrister from performing at 
the present time. So, too, as to interviews 
with the witnesses, whose testimony the Eng- 
lish lawyer of the present day knows only 
from his brief. Roger North says he has 
heard Sergeant Maynard say, that " no attor- 
ney made breviate of more than the pleadings, 
but that the counsel themselves perused and 
noted the evidences, — if deeds, by perusing 
them in his chamber ; if witnesses, by ex- 
amining them there also before the trial ; and 
80," North very sensibly remarks, "were 
never deceived in the expected evidence, as 
now the contrary ha^^ns ; the evidence sel- 
dom or never comes up to the brief, and the 



counsel are forced to ask which is the best 
witness. But the abatement of such industry 
and exactness, with a laziness also, or rather 
superciliousness, whereby the practice of law 
forms is slighted by counsel, the business, of 
course, falls into the hands of attorneys." 

Fees and retainers, also, which it is now 
unprofessional in England to receive directly 
from the client, were, in Sir Matthew Hale's 
time, paid to the barrister from the client's 
own hand. Indeed, the modern English 
fashion, strictly subdividing legal labor and 
controlling the relation of lawyers and clients^ 
did not come into vogue until the latter part 
of the eighteenth century. Lord Hardwicke 
studied in an attorney's office, and Lord Thur. 
low in a solicitor's. The ancient English bar, 
in this respect, resembled more closely the 
American than that of modern England. 

Wigs, the distinctive adornment of both 
judges and bar of modern times, are but an 
innovation, and were imported from France 
at the restoration of Charles II j and, though 
society in general afterwards dropped them, 
the profession, with its love for precedent, has 
retained this French fashion to the present 
day. Our green bags are a relic of ancient 
times. They are now never carried by Eng- 
lish lawyers j but on the stage of the theatres, 
in the seventeenth century, they were always 
borne by them. In Wycherly's " Plain Deal, 
er," Widow Blackacre upbraids the barrister, 
who declines to argue for her, with "Gads- 
boddikins! you puny upstart in the J law, to 
use me so j you green bag carrier^ you mur 
derer of unfortunate causes, the clerk's ink is 
scarce off your fingers." It appears, too, 
that in Queen Anne's time, these green bags 
were carried by attorneys and solicitors as 
well J for Ned Ward, in "The London Spy," 
observes of a dishonest attorney that " his 
learning is commonly as little as his honesty, 
and his conscience much larger than his green 
bag." Whether in any or all these innova- 
tions on the ancient practice, any improve, 
ment has been made, may be a matter of di- 
vided opinion} but in respect to another 
change, there can be but one. "In the se- 
venteenth century," says Mr. Jeaffreson, " an 
aged judge, worn out by toil and length of 
days, was deemed a notable instance of royal 



82 



THE CANADA LAW JOURNAL. 



[October, 1867. 



generosity, if he obtained a small allowance 
on relinquishing his place in court." Now 
the English people pay liberal pensions to 
those ikithful servants who have served them 
long and well. We still retain the ungener- 
ous fashion of the seventeenth century. 

The great rewards given to successful mem- 
bers of the profession in England, render the 
lives of their distinguished lawyers the history 
of the country. Mr. Jeaffireson says the life 
of a lawyer comprises three distinct periods : 
first, the useful but inglorious labors of an 
overworked barrister ; second, a term in which 
the more lucrative achievements of a popular 
leader are diversified by the triumphs of par- 
liamentary warfare; third, the honors and 
emoluments of the woolsack or the bench. In- 
cluding those peerages which have been won 
by persons whose families were first made 
noteworthy by great lawyers, as well as those 
won by actual lawyers, there were in the 
English House of Lords, at the time of the 
elevation of Lord Campbell to the peerage, 
three dukedoms, seven marquisates, thirty- 
two earldoms, oijie viscounty, and thirty-five 
baronies, held by "peers who, or whose ances- 
tors, have filled the judicial seat in England ;" 
and the number is constantly increased by 
the ennoblement of successful men, the last 
of whom is Sir Hugh Cairns. In the reply of 
Lord Thurlowtothe Duke of Grafton, already 
alluded to, he says, " The noble duke cannot 
look before him, behind him, or on either side 
of him, without seeing some noble peer who 
owes his seat in this house to successful ex- 
ertions in the profession to which I belong." 
It would be foreign to the purpose of this book 
about lawyers, to give any thing like a de- 
tailed history of these men ; but a curious and 
entertaining story is told of the Great Seal of 
England, and the vicissitudes to which it has 
been subjected. The seals, of which one may 
see the counterparts in any book of ancient 
English customs, are certainly not flattering 
portraits. Edward the Confessor, who is sup- 
posed to have set the fashion, appears to have 
been taken seated on a low stool, so that his 
legs, for the length of which he was noted, 
have scarcely that grace which might be de- 
sirable ; and his knees are brought into pain- 
ful proximity to his chin, making him resem- 



ble a trussed fowl rather than the ^'Lord^s 
anointed." The conservative spirit of later 
kings probably induced them to copy their 
predecessors down to the middle of the 
eighteenth century, with some few exceptions, 
—such as the Conqueror, who appears mounted, 
and Queen Bess, whose expanse of stiflT petti- 
coat modestly leaves the position of her knees 
to the imagination. 

The Chancellors were required to guard the 
royal seal with the utmost care, preserved in 
its crimson purse of state ] but, in spite of all 
their diligence, the seals appear to have been 
subjected to a number of curious mischances. 
When James the Second was fleeing from 
Whitehall, in 1688, he crossed the Thames 
by night, in a boat rowed by a single sculler, 
and, when in the middle of the river, drew 
forth the seal and dropped it overboard ; but, 
wonderful to say, it was, not long after, 
brought to shore in the net of a fisherman, 
who restored it to its proper keepers. When 
Thurlow was Chancellor, the seal was stolen 
from his dwelling-house, by a burglar who 
had forced his way in, and was never recover- 
ed. A similar attempt was made to steal the 
Clavis Regni from Lord Chancellor Notting- 
ham : but it happened that the faithful man 
was sleeping with the precious trust hidden 
under his pillow; so that the thief, one 
Thomas Saddler, failed to find it, and only 
carried away the mace, for which offence he 
was afterwards tried and hanged. Lord El- 
don's country house once caught fire, and, 
upon the first alarm, the Chancellor, running 
out of doors with the seal, which he too kept 
in his bed-chamber, buried it in the flower 
bed. The conflagration increased, and even 
Lady Eldon's maid servants helped to supply 
the water. " It was," wrote Lord Eldon, 
"really a pretty sight; for all the maids 
turned out of their beds, and they formed a 
line from the water to the fire engine, handing 
the buckets : they looked very pretty, all in 
their shifts." Perhaps this sight turned the 
old gentleman's head; for, when the fire was 
out and the sun rose, he had forgotten where 
he had buried the seal, and had to form his 
whole household into a digging party, who 
searched for some time before they discovered 
the buried treasure. In ancient days, the 



October, 1867.] 



THE CANADA LAW JOURNAL. 



83 



discarded seals were always broken to pieces, 
and, until recent times, with great complete- 
ness. When Charles the First's seal was sur- 
rendered to Fairfax, in 1646, it was, by order 
of Parliament, brought to the bar of the 
House of Peers, and there broken to pieces 
by a smith, amidst loud acclamations. In 
turn, on the Restoration, in 1660, the Com- 
monwealth's seal met a like fate. For seve- 
ral generations, the custom of breaking dis- 
carded seals has been disused; but the 
ceremony of damaskingj as it is termed, is 
still observed. The Sovereign, when he de- 
sires fornnally to set aside an old seal, taps it 
gently with a hammer, at the same time or- 
dering his loyal subjects to regard it as 
smashed and ground to powder. The chan- 
cellor in office at the time regards the seal so 
^^ damasked '' as his special perquisite ) and 
a curious controversy on this subject arose 
between Lord Lyndhurst and Lord Brougham, 
with regard to their respective claims to 
George IV.'s great seal. On William IV.'s 
accession, when an order in council for.a new 
seal was made, Lord Lyndhurst was chancel- 
lor ; but before this was complete, and while 
George IV.'s seal was in use, Henry Brougham 
became keeper of the King*s conscience. 
When at last the old seal was "damasked," 
the question arose to whom it fell as a per- 
quisite of office. Lord Lyndhurst claimed, 
that, as the order was made during his tenure 
of office, the seal was actuallv discarded dur. 
ing his chancellorship^ and therefore it fell to 
him. On the other hand, Lord Brougham 
argued, that the order for a new seal was but 
a step prudently taken in anticipation of the 
act by which George IV. 's seal was destroyed . 
that whilst the order was being executed by 
the engraver, the seal of George IV. was in fact 
as well as theory the seal of William IV. j that 
he (Lord Brougham) had held this seal ; and 
had done business with it, no one venturing 
to hint that its virtue was impaired, or in any 
^ay affected, by the order in council ; that 
the seal was not destroyed until William IV. 
damasked it, at which time he was the holder. 
This dispute was warmly carried on, until 
William IV., acting as arbitrator by the con- 
sent of the parties, terminated the contest by 
a decision, which, like most decisions arrived 



at by arbitration, was directly in defiance of 
principle and precedent, but probably the only 
one which would have suited both contestants. 
The seal is made in two parts, — ^the obverse 
and reverse, — being, indeed, separate and dis- 
tinct seals. The king, therefore, causing 
each part, at his own expense, to be set in a 
rich silver salver, gave judgment for both 
parties, who doubtless both " acknowledged 
satisfaction."* 



. LAW JOURNAL REPORTS. 



COURT OF QUEEN'S BENCH. 

APPEAL SIDE. 

Montreal, June 8th, 1867. 

RUTHERFORD et al., (Plaintiffs in the 
Court below) Appellants ; and FERRES 
(Intervening party in the Court below) Res- 
pondent. (2). THE MONTREAL AND 
NEW YORK RAILWAY COMPANY (De- 
fendants in the Court below) Appellants, 
and FERRES (Intervening party in the 
Court below) Respondent. 

Intervention^ Right of— Interest in suit — Dor- 
mant Partner, 

A party claimed to intervene in a suit, re- 
presenting that he was a partner of the plain- 
tiffs who were about to compromise their claim 
against the defendants without his consent : 

Heldj that his intervention was properly re- 
ceived. 

The circumstances which led to these two 
appeals were briefly as follows : — Rigney and 
Rutherford, two contractors, in 1851, entered 
into two contracts with the Lake St. Louis and 
Province Line Railway Company, now repre- 
sented by the Montreal and New York Rail- 
way Company, to do certain work on the rail- 
way. Previous to the second of these con- 
tracts, Rigney and Rutherford admitted Ferres 
as a partner in their firm for these contracts. 
Afler the work was completed, in 1863, the 
balance due was disputed by the Railway 
Company, and an action for a considerable 
sum was instituted against the Company by 
Rigney and Rutherford. About this time Rig- 
ney left the Province, and the suit was car- 



* To be concluded in next number. 



84 



THE CANADA LAW JOURNAL. 



[October, 1867. 



ried on by Ferres and Rutherford, till 1860, 
when Rutherford, assuming to act for himself 
and Rigney, without the knowledge or concur- 
rence of Ferres, transferred the claim to Light- 
hall, N. P., and in 1863, Lighthall and Ruth- 
erford entered into a settlement with the Rail- 
way Company, by which the suit was to be 
withdrawn, in consideration of a certain sum 
in money and stock, to be paid by the Com- 
pany. No steps appear to have been taken 
to withdraw the suit till 1864, when motions 
were made in Court for this purpose. At this 
time, however, Ferres, becoming aware of the 
intended settlement, prayed to be allowed to 
intervene for the protection of his rights, and 
his intervention was allowed by a judgment 
of the Superior Court, rendered by Monk, J., 
on the 25th of April, 1864. It was from this 
judgment that both the plaintiffs and defend- 
ants in the suit instituted appeals. 

The appellants submitted that the litigation 
had been put an end to a year before the mo- 
tions were made in Court, and could not be 
revived by Ferres, who had his recourse 
against his partners. 

For the respondent it was urged that the in- 
tervention disclosed on its face sufficient to es- 
tablish that he had clearly a right to be in the 
cause to watch over his interests. He alle- 
ged a partnership with Rigney and Ruther- 
ford, and therefore had a right to be in the 
case which they were about to settle without 
regard to his interests. 

Duval, C.J. Ferres has asked leave to 
intervene. I am of opinion that he has no 
right to intervene. But I am alone in this 
opinion. My reasons are that no party has a 
right to intervene in a suit unless he shows 
cause. Now what does Mr. Ferres complain 
of? He is a dormant partner of the plaintiffs, 
and by the law of this country, a dormant 
partner has no rights against third parties : 
he may have an action against his own part- 
ners. That part of the case should, therefore, 
be set aside. In the neid; place, Ferres says, 
I have claims against my partners, and I am 
informed that they are about to settle this case 
with the opposite parties to my detriment. To 
this I say, suppose this were true, and sup- 
pose they settled with the defendants, could 
not Ferres bring his action directly against 



them, founded upon the fraudulent concert 
between them? The conclusions of the petition 
in intervention are certainly strange ; he prays 
the Court that in case of contestation of his 
rights by the plaintiffs, the amount of his 
rights be ascertained by arbitration. What 
has the opposite party to>do with this ? They 
may well answer, ''We have nothing to say 
to you; if you have any action against your 
dormant partners, exercise that right ; but 
why do you ask to intervene, and pray that 
your rights may be settled by an arbitration 
which may last for years before this Court, 
and in the meantime we are to remain in Court 
till you and your partners have settled your 
rights." It is said, however, that this is an- 
ticipative. I think it is not. I say that no 
party has a right to intervene unless he shows 
cause, and I say that, taking every word that 
Mr. Ferres says for granted, he has shown no 
right to intervene in this cause. The defend- 
ants ought not to have their proceedings tied 
up for years, till it shall please Mr. Ferres 
and his partners to settle their claims against 
each other. I would at once have rejected 
the intervention. 

Johnson, J. This is an appeal from a judg- 
ment rendered in the Superior Court adjudi- 
cating upon several motions. The interests 
of the parties were represented an of great 
magnitude, and the case was very earnestly 
argued, but the point appears to me very sim- 
ple. In the first place, there was an objec- 
tion raised to certain motions of substitution 
in the Court below. We only say that there 
appears to be. nothing irregular in these. But 
the main objection of the appellants is that 
the judgment appealed from proceeded to al- 
low a certain intervention presented by Mr. 
Ferres, the respondent. The Court has come 
to the conclusion that all the authorities on 
this point are fairly condensed in the article 
of the Code of Civil Procedure, which may 
now be taken as law. The rule laid down in 
the Code is that every one having an interest 
in the event of a pending suit is entitled to be 
admitted a party thereto, for the protection of 
his rights. (Art. 154). This appears to be 
sufficiently general to embrace this case. But 
it is said that the respondent, asking leave to 
intervene, does not disclose upoa the face of 



October, 186Y.] 



THE CANADA LAW JOURNAL. 



85 



his petition sufficient grounds to entitle him 
to intervene. A step further is taken, and it 
is said that although Mr. Ferres may have 
shown good reason to intervene, yet the other 
party may have a good answer. But we can- 
not go beyond the fact that the respondent 
has shown a prima fade right to intervene. 
The other question can only be settled after 
an enqu^te. It may be added that the right 
to make a demand in a Court of justice is a 
civil right which can only be restricted by le- 
gislation. But it is objected that this may have 
the effect of protracting the suit. So may an 
unjust demand. Courts of justice cannot 
<iontrol the justice of demands as regards the 
right to make them j they can only control 
the disposal of them. We think, then, the 
respondent has a right to intervene, and be- 
yond that the Court does not go. The judg- 
ment of the Court below is confirmed. 

Drtjmmond, and Mondelet, JJ., concurred. 

Judgment confirmed, Duval, C. J., dissent- 
ing. 

H, Stuart, Q, C, and Cross & Lunn, for 
the Appellants. 

A. ijh W. Robertson, for the Respondents. 



ORIMARD (Defendant |?arrepme dHnstance 
in the Court below) Appellant, and BUR- 
ROUGHS (Plaintiff in the Court below) 
Respondent. 

Retaining fee — Action for services rendered as 

advocate. 

Held, that an advocate has a right of action 
for a retainer, but he cannot recover from his 
^ient more than the fees fixed by the Tariff, 
unless he can prove an agreement with his 
client that more than the taxable fees should 
be paid. 

Held, (per Badgley, J.,) that there is no 
right of action in Lower Canada for a retainer. 

This was an appeal from a judgment rend- 
ered by Monk, J., in the Superior Court, on the 
2nd of March, 1864. The action was institu- 
ted by the plaintiff against Louis DeChantal, 
for the sum of £250, being for value of ser- 
vices rendered him by the plaintiff as advo- 
cate, counsel and attorney, and amount of 
disbursements made in certain cases specified. 
The declaration contained, besides the count 
of quantum meruit, two special counts, one 



for £107 9b. 4d., amount of fees and disburse- 
ments taxable against the opposite party ; the 
other for £150, amount of retaining fee for 
extra services. 

Pleas : 1st, that Louis DeChantal had been 
voluntarily interdicted, and could not be im- 
pleaded without the assistance of his wife who 
was his counsel ; 2nd, that Louis DeChantal 
had never agreed to pay a retaining fee, and 
that he had paid all the taxed costs and dis- 
bursements. It was on the second plea that 
the case turned. 

The plaintiff produced bills of costs for fees 
and disbursements amounting to £107 9s. 4d. 
He also produced a register of proceedings in 
the case of DeChantal v. DeChantal^, one of 
the ca^es he had conducted for the defendant, 
and at enquHe examined a number of profes- 
sional men respecting the total value of the 
services rendered. The defendant produced 
at engu^te a number of receipts given by the 
plaintiff to Louis DeChantal for difierent sums, 
amounting in all to £130 10s. 7d. The dates 
of these receipts extended over a period of two 
and a half years, and most of them were in 
these words, " Received for retaining fee J** 

The question was as to the right of the plain- 
tiff to the retaining fee of £150. The Supe- 
rior Court held that it was proved by the re- 
ceipts that DeChantal agreed to pay the plain- 
tiff a retaining fee over and above his taxed 
costs, and that £150 was a reasonable 
amount. The defendant was accordingly con- 
demned to pay £116 198. Id., viz. £19 Ss. 
5d., balance due upon the retaining fee, and 
£97 9s. 8d., due upon the taxed costs. 

From this judgment, the defendant appeal- 
ed on the following grounds : 1st, an omission 
by the judgment to credit the defendant with 
about £10 charged by the plaintiff, but not 
actually disbursed by him. 2nd, Because the 
judgment should have declared th^ plaintiff 
entitled only to the £107 of taxable costs, and 
should have declared this amount paid. 3rd, 
The Superior Court should not have received 
proof of a quantum meruit to establish a retain- 
ing fee, apart from the tariff. The plaintiff 
not having alleged an agreement with De- 
Chantal as to the payment of a retainer, could 
not get such retainer by a quantum meruit. 
The tariff of fees established a contract be- 



86 



THE CANADA LAW JOURNAL. 



[October, 186' 



tween the parties, which could not be deviat- 
ed from without an express agreement, and 
as puch agreement did not exist the tariff 
was law. 

Badgley, J. This is more a professional 
question than anything else. It is one of 
those questions which are of interest to the 
bar, and which require a little examination. 
The facts of the case are these : Mr. Burroughs, 
an attorney and advocate of this Court, was 
substituted in a case brought against an old 
man named DeChantal. He took the case 
through a long and tedious enqutte^ and ob- 
tained judgment. The case was taken to the 
Court of Appeals, and there the judgment 
was against Mr. Burroughs' client. While 
this case was pending, another action was 
instituted against DeChantal for a smaller 
amount, and Mr. Burroughs again appeared. 
An attachment was issued against the 
defendant, and upon that attachment Mr. 
Burroughs appeared also, and acted for 
DeChantal. Execution issued against the de- 
fendant's goods, and Mr. Burroughs filed an 
opposition. Costs were incurred in these va- 
rious cases and proceedings, amounting to 
£107. The taxed bills have been filed, and 
there is no difliculty on this point. While 
Mr. Burroughs was thus employed as attor- 
ney, he was receiving sums of money from his 
client from time to time, amounting in all to 
£144. No credit has been given by the plain- 
tiff for these amounts, but they have been es- 
tablished by receipts which the defendant has 
produced before the Court, and these amounts 
are represented in the receipts as having been 
paid on account of retainer. His client not 
being willing probably to pay any further sums, 
an action has been instituted against him by 
his attorney. The action was brought for 
£250 i,e, £107, as the amount of the bills of 
costs, and £150 for retaining fee for extra ser- 
vices. Now the action is brought simply, in 
the common assumpsit form, for work and 
labor amounting to £150, &c., with conclu- 
sions for £250. The defendant pleaded that 
he was not liable for anything beyond what 
the tarifi^ allowed as taxable costs; that 
the retainer was not recognized by law, and 
that he was not liable to pay a retainer. The 
argument before this Court turned solely upon 



this charge for a retainer. In addition, there 
are some small items charged as paid by Mr. 
Burroughs, but which are shown by the de- 
fendant to have been paid by him. 

The question then is, has an advocate an 
action against an unwilling client for the reco- 
very of a retainer ? This is the whole question . 
The question does not turn upon the right of 
the advocate to receive his taxed costs which 
are regulated by the Tariff. The question, as 
I stated before, is almost entirely a profes- 
sional one, and although it has already been 
adjudged upon, it may be well to go into it a 
little in detail.* 

The question of the right of an advocate to 
recover fees was originally settled by the Ro- 
man law, and that law forbade advocates to 
make any bargain with their clients for their 
fees, and also interdicted them from an action 
for their recovery. In England, the law dis- 
tinguishes between advocates and barristers j 
the fees of the latter are strictly honorary. 
Blackstone says, it is established that a coun- 
sel cannot maintain any action for his fees, 
and it has been so held on the ground of pub- 
lic policy, from the great influence of the ad- 
vocate over his client, who is compelled to be- 
come dependent on his skill and professional 
experience, 

[His Honour also referred to the jurispru- 
dence of France as against the right of action 
of the suivocate.] 

Under these circumstances, I would be in- 
clined to disniiss this action without saying a 
word more. But apart from all this, the case 
is susceptible of other considerations which 
appear to have influenced the Court below in 
rendering judgment. These deserve conside 
ration, because the position of practitioners at 
the provincial bar is somewhat anomalous. A 
lawyer unites here both professional offices ; 
he is an attorney, and at the same time he 
fills the office of the English counsel or advo- 
cate. The two offices as they exist in France 
and England are not clearly distinguishable 
here. In this union of offices, the Lower 
Canadian lawyer may be assimilated to pro- 
fessional men in the United States, where 
the advocate may demand compensation. 
There the oflSces of attorney and counsel 
are frequently blended in one, and actions 



October, 1867.] 



THE CANADA LAW JOURNAL. 



87 



for compensation are sustained in most 
of the States of the Union. Our Tariff 
rates apply to the services of advocates 
and attorneys as taxable against the losing 
party. Costs are generally given to the vic- 
torious party against the losing party by dis- 
traction. But apart from the Tariff) there is 
no means of fixing the value of services ren- 
dered by an attorney to his client. Of course 
we all know that it is usual for a lawyer to 
tell his client, when asked to undertake a case, 
this is a case of considerable difficulty, and 
you must pay an additional amount, ani the 
money is paid down at once, and does not go 
into the account between the parties. Even 
at a subsequent period if more be required, a 
refresher may be asked. But in this case, it 
will be remembered that the services of Mr. 
Burroughs commenced only with the enquite ; 
he took the case through the enquite, and 
through the Court of Appeals. In his state- 
ment of particulars, the amount charged rests 
upon the number of witnesses examined, the 
length of the engmte, and finally the appeal. 
All these are matters that would be appre- 
ciable by the record itself. The record has 
not been produced in the case, and we have 
only the testimony of three professional gen- 
tlemen, who having heard stated the number 
of days the enquete lasted, gave their opinion 
that £150 was a very reasonable charge. But 
can testimony of this kind, however respect- 
able, support an action of assumpsit f Then 
we come to the question of the receipts. These 
receipts were produced by the defendant to 
show the actual amount of money paid by 
him to his attorney j and in these receipts the 
attorney has taken the precaution to say that 
they are on account of retainer. It is admit- 
ted of record that the defendant was an igno- 
rant man who could not read, and was 
only able to sign his name. He was ignorant 
also of the nature of the consideration receiv- 
ed for the money paid ; for it appears that the 
plaintiff refused to give an explanation of the 
word retainer, or retenUj although his cUent 
expressly requested him to do so. Many of 
the receipts are in English, and the evidence 
of the defendant upon this subject strongly 
supports the objection arising from the receipts 
themselves. Under these circumstances, the 



receipts are obnoxious to the objection of be- 
ing a surprise upon his client, and they can 
only stand as receipts for money paid. Even 
if the right of action for a retainer could be 
maintained, the proof to support the action 
in this case is wanting. The plaintiff's ac- 
tion therefore must be dismissed. 

MoNDELET, J., concurred in dismissing the 
action. He did not deny the right of action, 
but he thought the proof was not sufficient. 
The receipts did not constitute a commence- 
ment depreuve. 

Duval, C. J. I distinctly recognize the right 
of action of counsel to recover their fees. We 
have nothing to do with English law in this 
case J we have to do with the law of France, 
and in France the Courts never interfered. 
When an advocate thought he had a right to 
complain, he brought his case before the cor- 
poration of advocates, and if they thought it 
was a case in which an action should be 
brought, then the action was brought in the 
name of one of their own body. The right of 
action has also been recognized in Lower 
Canada 5 I remember two cases* at Quebec, 
and, for my part, I never entertained a doubt 
on the subject. But we are told that the . 
English law denies the right of action. Let us 
see how the English law stands : the counsel 
takes care to get his fee in advance from the 
attorney, and then the attorney brings his ac- 
tion for so much money paid to the counsel, 
and succeeds. Instead of the barrister claim- 
ing it as a, fee, which is considered infra dig., 
the attorney claims it as so much money dis- 
bursed to the counsel. This is better to the 
English advocate than a right of action.— . 
Distinctly recognizing this right of action, as 
I do, we come to the consideration of the pre- 
sent case. The plaintiff here appears as at- 
torney ad litemj as well as counsel. He 
has made his contract with his client as 
attorney ad litemj and the Court cannot go 
beyond that contract, in his capacity as attor- 
ney. But he says, I had another capacity, 
I acted as his counsel. To this I answer that 
if you were not satisfied with what the tariff 
allowed you as attorney, it was your duty to 
tell your client that this was a difficult case, 



* Not reported. 



88 



THE CANADA LAW JOURNAL. 



[October, 1867. 



and you required more. But here a poor man 
in the country is sought to be charged £150 
as a retainer. If he had been told beforehand 
by his lawyer, that his fees would amount to 
£160, he might have said that he thought he 
could settle the case for £75, and get rid of 
the trouble of litigation. I therefore pnt my 
judgment in this case upon this ground : dis- 
tinctly recognizing the right of counsel in 
this country to bring an action for the reco- 
very of their fees, I will not recognize the 
right of an attorney, after the case is over, to 
bring an action for extra services as counsel, 
without having notified his client that he 
would have to pay more, and without ob- 
taining his assent to pay more. In this 
case, there is in my opinion, no evidence that 
De Ghantal was notified that the usual attor- 
ney's fees would not satisfy his counsel, and it 
was only fair and necessary that he should be 
notified, as he might have been able to make 
a better settlement himself with his adversary. 
Drummond, J. Althoagh agreeing in prin- 
ciple with, at least, twoof the judges, I dissent 
from the application of that principle to the 
present case. The Chief Justice has men- 
tioned two cases at Quebec where the Courts 
granted judgments for retainers. I remem- 
ber two or three cases here, one by Mr. 
Devlin against Dr. Tumblety, in which 
the plaintiff recovered a sum for his retainer. 
I also remember a case some years ago, before 
Chief JusticeValli^res, in which I obtained my 
fees as counsel for the defence in a case before 
the Criminal Court. I do not think that the 
opinion of the bench has been, that no person 
is entitled to an action against his client, unless 
there has been understanding between them. 
But even supposing this, have we no proof 
that there was such an agreement here ? I 
think so. I cannot draw a distinction between 
ignorant men who cannot write, and those 
who can write. Besides, De Chantal was a man 
who had long practice before this Court; he 
knew well the meaning of a retainer. It is 
proved by the witness Elliott, that he knew 
and said he was paying more than the taxa- 
ble costs. The rules followed in France and 
in England, apply to the profession as it exists 
there. In the United States, I believe the 
action is always allowed, and the profession is 



in a somewhat similar position here. I hare, 
therefore, to dissent from the majority of the 
Court. I would not confirm the judgment as 
it stands, but I think that Mr. Burroughs 
should be allowed his taxed costs, exclusive 
of what he has already received for retainer. 
The EnquSie was long and difficult, and it is 
proved that De Chantal was in the habit of 
getting his receipts for the money he paid, 
during this time, read to him by a member of 
the family. 
The motif 8 oi the iudgmeni are : — 
Considering that the defendant had paid to 
the plaintiff, and advanced for charges made 
by the plaintiff, and not credited by him to the 
defendant previous to the institution of the ac- 
tion against the defendant, the sum of £144 
2s. lid., being £36 13 11 over and above the 
sum of £107 9, found to be due by the defen- 
dant, as mentioned in the judgment of the 
Court below, and considering that the plaintiff 
hath not established in law his demand for the 
sum of £150 by him claimed as retainer in the 
said professional matters in the said record 
set out : considering that the said sum of £107 
hath been paid by the defendant to the plain- 
tiff previous to the institution of this action, 
but without credit given therefor by him : — 
considering that in the judgment rendered by 
the Court below, there was error, Ac. Judg- 
ment reversed, and action dismissed, Drum- 
mond, J., dissenting. 

LeblanCj Cassidy d: Leblanc, for the Appel- 
lant. 

Cross & Lunrij for the Respondent. 



HAROLD, (plaintiff* in the Court below,) Ap- 
pellant j and THE CORPORATION OF 
MONTREAL, (defendants in the Court be- 
low,) Respondents. 

Negligence — Contractor -^Damages. 

Held, that a party is responsible for the neg- 
ligence of his contractor, where he himself 
retains control over the contractor and over 
the mode of work. The relationship between 
them is then similar to that of master and 
servant. 

This was an appeal from a judgment ren- 
dered in the Superior Court by Monk, J., on 
the 20th of September, 1865, dismissing the 
plaintiff's action. 



October, 1867.] 



THE CANADA LAW JOtJRNAL. 



89* 



The action was instituted for $10,000 dam- 
ages for loss sustained in 1862 by the Cor- 
poration laying a main sewer through the 
greater part of McGill Street, and in front of 
the plaintiff's shoe store. While this sewer 
was being constructed the street was for a 
long time blocked up with mud and earth 
from the excavation ; and the plaintiff's busi- 
ness as a shoemaker greatly interfered with, 
his receipts were diminished, and his customers 
obliged to go elsewhere. The defendants 
pleaded that the work had been carried on 
with diligence, so that the plaintiff, even if he 
had sustained loss, could not recover. The 
action was dismissed in the Superior Court on 
the ground that the defendants were not guilty 
of negligence or of any acts rendering them in 
law liable for damages, and that they had used 
all possible care and diligence in completing 
the work. The plaintiff appealed. 

Badglet, J. This is a case of some im- 
portance with reference to damages. In 1862, 
the Corporation of Montreal determined to 
construct a tunnel, and with this object en- 
tered into a contract with Patrick White. The 
work commenced in August, and the material 
from the excavation was thrown up, encum- 
bering both the roadway and foot pavement. 
After some time, the Corporation being dissa- 
tisfied with the progress made, protested the 
contractor that they would employ other con- 
tractors unless the work was pushed on with 
more speed. A second and more formal pro- 
test was subsequently served in the end of 
October, and on the following day the Com- 
mittee took the work out of White's hands, 
and a new contract similar to the first was 
entered into with Valin & Barbeau for the 
completion of the work. In the meantime, 
the plaintiff, a shoemaker, doing a large retail 
business, and other residents in the street, 
complained of the serious loss entailed upon 
them by the blocking up of the street. When 
the work was proceeding near the plaintiff's 
shopy an accident occurred by the falling in of 
the sides of the trench, which caused much 
difficulty and delay. Evidence of the injury 
suffered by the plaintiff is'afforded by the pro- 
tests of the Corporation. The falling in of the 
sides of the excavation caused by the quick- 
sand is no excuse, for this might have been 



provided against The defendants, however, 
have urged that the work was done by con- 
tract, and that the contractor was not their 
servant. On this point the doctrine is that a 
person employing a contractor is not liable for 
the negligence of the contractor, while a mas- 
ter is liable for the negligence of his servant. 
But there is this modification of the general 
doctrine, that where a man keeps control over 
the mode of work, there is no difference bet- 
ween his liability and that of a master. Now 
here the Corporation reserved to themselves 
the control of the work ; the contractors were 
bound to follow their directions in doing the 
work, and the relation between them was 
therefore that of master and servant. Qui 
facit per alium facit per se : he who makes 
choice of an unskilful person as his servant is 
liable for his choice. It only remains, then, 
to settle the amount of damage. The plaintiff 
has put in evidence his sales in 1861, 1862, 
and 1863, to show the loss of receipts after the 
obstruction commenced. The Court is not 
disposed to allow the plaintiff more 'than the 
loss of profits during the extra time the ob- 
struction lasted, owing to the negligence of the 
contractors. This amount has been fixed at 
$273.70, for which judgment will go in favour 
of the appellant, with costs of both Courts. 

MoNDELET, J. No One can doubt that the 
fkcts justify a judgment against the Corpora- 
tion. 

Duval, C. J. I have come to the same con- 
clusion. The judgment is : 

Considering that it has been proved that the 
respondents during the execution and construe* 
tion of the works mentioned in the declaration 
of the appellant, (which said works the res- 
pondents were by law authorized to make) 
were guilty of negligence and of acts rendering 
them liable in damages to the appellant, by 
obstructing for the period of four months, from 
the middle of September, 1862, to the middle 
of January, 1863, full and perfect access to 
the shop and premises, and causing him loss 
and injury therefrom : Considering that the 
damages have been proved to amount, for the 
said space of time, to $273.70, etc. Judgment 
reversed, and judgment for said amount in 
favor of the plaintiff. 

Drummond, J., concurred. 






90 



THE CANADA LAW JOURNAL. 



[October, 1867. 



T&rrance <fc MorriSy for the Appellant. 
ff. Stuart, Q. C, and R, Roy, Q. C, for 
the Respondents. 

June 3. 
MULLIN, (defendant in the Court below,) 
Appellant J and ARCHAMBAULT et al., 
(plaintiffs in the Court below,) Respondents. 

Notice to terminate lease — Transmissible right. 

Two persons, joint owners of a certain pro- 
perty, leased it, reserving to themselves the 
right to give notice terminating tlie lease on 
their electing to build. One of the joint 
owners sold his undivided half of the pro- 
perty, and notice to terminate the lease was 
given by the purchaser and the owner of the 
other half: — 

Heldf that the right to give notice was pro- 
perly exercised by the purchaser, who was 
substituted in the rights of his vendor. 

This was an appeal from a judgment ren- 
dered on the 28tli June, 1866, by Monk, J., 
confirmed in Review, Smith, J., dissenting. 
The action was instituted by P. U. Archam- 
bault and James Baylis to obtain the resilia- 
tion of a lease made by Archambault and one 
Levesque to the defendant MuUin. This 
lease, passed in February, 1860, was for a 
period of six years and ten months and a half, 
to be reckoned from the 15th June, 1861, to 
the 30th April, 1868, and contained the fol- 
lowing stipulation : 

^^And finally it is understood and agreed 
that the lessors shall have the right to cancel 
this lease on the 30th April, 1866 or 1867, by 
giving the lessee notice of such their intention, 
in writing, at least three months previous to 
the day on which they desire the lease to ex- 
pire, and this right shall be exercised in the 
event of their electing to build, and not other- 



wise. 



n 



On the 25th August, 1866, Levesque and 
his wife sold their undivided half of the pro- 
perty to Baylis, who gave the notice required to 
cancel the lease, and upon the refusal of Mul- 
lin to give up the property, brought the pre- 
sent action to resiliate. The only part of the 
pleas necessary to be noticed is that which set 
up that the stipulation or reserve, giving the 
right to the lessors to cancel the lease on their 
electing to build, was personal to the lessors, 
and did not pass to the purchaser. 

The Superior Court considered that the 



right to cancel on electing to build was not 
personal to the lessors, but was transmitted 
to the purchaser, and gave judgment in favour 
of the plaintiff. The defendant having in- 
scribed the case for review, the judgment was 
confirmed. Smith, J., dissenting. The defen- 
dant then appealed. 

The Court (Duval, C. J., Aylwin, Badoley, 
and MoNDELET, JJ.,) was unanimously of 
opinion that baylis was substituted in the 
rights of Levesque by his purchase of Leves- 
que' s undivided half, and therefore he had a 
right to terminate the lease. 

Judgment confirmed. 

J3. Devlin, for the Appellant. 

P,A,0. ArchanibauU, for the Respondent. 



MONTHLY NOTES. 

COURT OF QUEEN'S BENCH.— (Appeal 

Side.) 

June 8th, 1867. 

DUFAUX ET AL., (defendants in the Court 
below) Appellants j and HERSE et al., 
(plaintiffs in the Court below) Respondents. 

Will — Donation — Substitution, 

This was an appeal from a judgment rend- 
ered by Smith, J., in the Superior Court at 
Montreal, on the 26th of January, 1865. The 
action was instituted by Marie Louise Herse 
(and husband), to recover the half of certain 
immoveable property in Montreal. The de- 
claration set out that by acte of donation on 
the 21st of May, 1826, Pierre Roy gave to his 
son Joseph, the land in question, to enjoy it 
d titre de consUtut et pricaire, reserving to 
himself the usufruct during his lifetime. After 
the death of Joseph Roy, this property was to 
go to the children, and, in default of children, 
to the other heirs of the donor. This dona- 
tion was enregistered and published on the 
28th of June, 1825. Pierre Roy died on the 
16th of August, 1832, without making a will 
subsequent to this donation. After his death, 
his son, Joseph, took possession of the land 
in question, built two houses upon it, and 
died without children, on the 9th of October, 
1848. At the time of his death, the plaintiff, 
Marie Louise Herse, grand-daughter of Pierre 



October, 1867.] 



THE CANADA LAW JOURNAL. 



91 



Roy, and the defendants^ Joseph Dufauz and 
Marguerite Dufauz, as representing their mo- 
ther, a sister of Marie Louise Herse, were the 
nearest of kin to Pierre Roy. Thus on the 
death of Joseph Roy, the land in question de- 
volved, by virtue of the deed of donation, one 
half upon Marie Louise Herse, and the other 
half upon Joseph and Marguerite Dufauz. 
But, as the declaration alleged, on the death 
of Joseph Roy, the defendants illegally took 
possession of the whole, and continued in pos- 
session. The plaintiffs further alleged that 
on the 2nd of September, 1848, Joseph Roy 
made a will bequeathing the land in question 
to the defendants ; that subsequently, in May, 
1857, one J. Bte. Sancer brought an action 
against the defendants, to have the plaintiffs, 
his debtors, declared proprietors of the undi- 
vided half of the land willed by Joseph Roy j 
that to this action (then still pending), the 
defendants pleaded that the present plaintiffs 
had ratified the will of Joseph Roy on the 
10th of December, 1848, in an ac^e which was 
the priambule d Viiwentaire of the effects of 
Joseph Roy; that Sancer had inscribed en 
faux against this aeie of ratification, because 
at this time the plaintiffs were ignorant of the 
ezistence of the deed of donation ; that Joseph 
Dufauz, father of the defendants, knew of the 
ezistence of the donation, but concealed the 
fact from the plaintiffs. Conclusion, that the 
plaintiffs be declared proprietors of the undi- 
vided half of the land in question, and that 
the defendants be condemned to pay £4,000 
for revenues and damages. 

Plea : That Pierre Roy made a will on the 
15th of December, 1821, bequeathing to his 
son, Joseph Roy, the usufruct of all the pro- 
perty, moveable and immoveable, which he 
might leave at his death, the proprUU to be 
his children's, with power, in case he should 
not have any children, to dispose of the pro- 
prUU in his discretion. 

Two questions arose : 1. Was the will made 
by Joseph Roy, disposing of the property in 
favour of Joseph and Marguerite Dufauz, va- 
lid? 2. Kit was not, did the ratification by 
the plaintiff of the will of Joseph Roy ezclude 
her from claiming the share which she would 
have had in the property, if Joseph Roy had 



not willed it to the defendants ? The Superior 
Court decided these questions in the negative, 
holding that by the donation entre vifsj of the 
2l8t May, 1826, Pierre Roy made over to his 
heirs-at-law the property in question, reserv- 
ing to Joseph Roy the life interest of the es- 
tate ) and that on the death of Joseph Roy, 
the property devolved equally upon the plain- 
tiffs and defendants. The Court held, fur- 
ther, that the effect of this donation was such 
as to prevent Joseph Roy from disposing of 
the property by will, and therefore the will 
made by him, under which the defendants 
had taken possession of the whole property, 
was null and void. The Court lastly held 
that the fact of the plaintiffs having signed 
the priambule dHnveniairej which did not 
make any allusion to the donation, could not 
defeat the pre-ezisting title of the heirs. The 
Court accordingly declared the plaintiffs the 
proprietors of the undivided half of the pro- 
perty, and ordered an expertise. From this 
judgment the defendants appealed. 

The following propositions were submitted- 
by the counsel for the appellants as grounds 
for the reversal of the judgment. 1. By the 
donation of 1826, Pierre Roy only disposed of 
the land in question, in favour of his son Jo- 
seph, with the reservation that if Joseph died 
without children, the property should return 
to his (Pierre's) succession. 2. In the event 
of Joseph not leaving children, the property 
would be subject to the testamentary disposi- 
tions of Pierre Roy, either before or after the 
date of the deed of donation, and consequently 
Joseph Roy could dispose of it by will as he 
had done. 3. Even supposing that the pro- 
perty devolved upon the heirs as the plaintiffs 
pretended, yet Joseph Roy could give a part 
of the property belonging to the plaintiffs to 
his other legatees, inasmuch as it is permit- 
ted to a testator to bequeath the property of 
others. 4. The plaintiffs ezpressly ratified 
the will of Joseph Roy, with knowledge of the 
donation of 1825, and could no longer demand 
the setting aside of the legacies contained in 
it. 5. Assuming that the plaintiff did not ez- 
pressly ratity the will, she had ezecuted it, 
after being made aware of the donation, by 
accepting the legacies contained in it. 6* 
After being aware of the donation, she had al- 



92 



THE CANADA LAW JOURNAL. 



[October, 1867. 



lowed more than ten years to elapse, without 
taking any steps in the matter. 

DBUiofOKD, J., said he differed from the 
majority of the Court. 

MoKDELET, J., was of Opinion that the judg- 
ment should be reversed. 

MsBEDiTH, J., after resuming the facts, ob- 
served that the main question was whether 
Joseph Roy had power to make a bequest of 
the property in dispute. Now by the will of 
Pierre Roy, in 1821, his son Joseph was to 
have the usufruct and enjoyment of all his 
property, and if Joseph should die without 
leaving any children, he had power to be- 
queath the property to whom he thought pro- 
per. But it was said that a substitution had 
been created by the deed of donation in 1825. 
His Honour did not think that such was the 
intention of the testator, or that the deed 
should be construed in that way. He believed 
that Pierre Roy certainly wished his son Jo- 
seph, in the event of his dying childless, to 
divide the property among the heirs. The 
power thus given by the testator to his son 
was both important and reasonable. Pierre 
Roy might reasonably have thought that this 
arrangement would be best in the interests of 
his descendants. There was no reason to sup- 
pose that Pierre Roy intended by the deed of 
donation to curtail the powers conferred on 
his son by his will. The view His Honour 
took of the case was substantially that sub- 
mitted by the counsel for the appellants. 

Duval, C. J., concurred. He read the 
judgment of the Court which was as follows : 

Considerant que feu Pierre Roy, le 21 mai 
1825, d Montreal, a fait donation pure, sim- 
ple et irrevocable & Joseph Roy, son fils, du 
terrain dont il est question, pour du dit ter- 
rain jouir, user, faire et disposer par le dit 
Joseph Roy d titrede constUut etpriccdrej sa 
vie durante, d commencer la dite jouissance 
seulement au dec^s du dit donateur, qui se 
reserve la jouissance et usufruit du dit ter- 
rain, sa vie durante, a titre de constitut et pr^- 
caire seulement, et aprds le d6cds du dit Jo- 
seph Roy, donataire, la propri6t6 du dit ter- 
rain devant demeurer «L ses enfants nes en le- 
gitime marriage, et a d6faut d'enfants n6s en 
legitime manage du dit Joseph Roy, la pro- 
priety demeurer et appartenir auz autres h^- 



ritiers du donateur, qui en jouiraient et dispo- 
seraient conform^ment «l ce que le dit dona- 
teur en aurait dispose et ordonn^ par son tes- 
tament et ordonnance de ees derni^res volon- 
t^s. 

Considerant que le dit Joseph Roy, dona- 
taire d^nomme au susdit acte de donation, est 
dec6de sans en&nts, et qu'aux termes du dit 
acte de donation, les biens donnas par icelle 
sont devenus la propriety des heritiers du do- 
nateur, Pierre Roy, pour en jouir et disposer 
conform^ment a ce que le dit donateur avait 
ordonne par son testament et ordonnance de 
ses dernidres volont^s. 

Considerant que le donateur, Pierre Roy, 
par son testament re^ par Papineau, N. P., 
d Montreal, le 15 decembre 1821, a legue d 
son fils, le susdit Joseph Roy, la jouissance 
et usufruit de tous les biens, meubles et im- 
meubles qu'il deiaisserait d son deces, pour 
la propriete demeurer d ses enfants nes et d 
nattre en legitime mariage, de disposer de la 
propriete des dits biens, tant meubles qu'im- 
meubles, selon sa prudence et discretion, sans 
Stre tenu de suivre aucune loi d'egalite ou de 
proportion entre les petits en&nts du testa- 
teur, qui seraient tenus de secontenter du lot, 
qui leur serait assigne par le dit Joseph Roy, 
leur oncle, et si aucun des petits enfants du 
testateur decedait sans enfants legitimes, sa 
part serait reversible aux suBurs maternelles 
du dit Joseph Roy seulement, ou d celles de 
ses soeurs maternelles qui survivraient, et si 
toutes decedaient sans en&nts, nes en legiti- 
me mariage, alors ce qui leur serait ainsi 
revenu du chef du dit testateur serait reversi- 
ble au sieur Joseph Marie Roy, Mte du tes- 
tateur, pour en jouir sa vie durante seule- 
ment, et la propriete demeurer k ses enfants 
nes en legitimes mariages, avec pouvoir, dans 
le cas oii il n' aurait pas d' enfants, de dispo- 
ser des biens qui lui seraient echus du testa- 
teur, comme il aviserait et sans ^tre tenu 
d' observer aucune loi d'egalite ou de propor- 
tion entre les neveuz du dit testateur, lequel 
testament a ete confirme par le dit Pierre 
Roy, par son dit codicile re^u par Papineau, 
N. P., d Montreal, le 12 decembre 1831. 

Considerant que les dispositions contenues 
dans Tacte de donation du 21 mai 1825, n'e- 
tant ni prohibees par la loi ni contraires auz 



October, 186T.] 



THE CANADA LAW JOURNAL. 



95 



bonnes moeurSjdoiyent ^tre reconnuesyalables; 
et qa*en vertu d'icelles dispositions le sus-nom- 
m^ Joseph Roy, iils, avait le droit de disposer 
des biens meubles et imroeubles, d^laiss^s 
par Pierre Roy, et que Joseph Roy, par son 
testament re^u par Brault, N. P., le 2 septem- 
bre 1848, & Montreal, avait l^gu6 aux appe- 
lants, ses petits neveuz, le terrain mentionn^ 
dans I'acte de donation, (moins les deux em- 
placements qu'il ayait l^gu68)pour, par eux, 
ses dits deux petits neyeux, Joseph et Mar- 
guerite Dufaux, en disposer en toute propri^t^, 
& compter de la majority du plus jeune des 
deux qu'il avait l^gu^, en outre, un autre ter- 
rain aux appelants, et que quant & tout le 
reste de ses biens, il en avait donn^ la moiti6 
aux appelants, et Tautre moiti^ en jouissance 
^ rintim^e, et la propri^t^ d ses enfants, et 
qu'il avait d^clar^ que ces legs, ainsi faits en 
jouissance d I'intim^, ^tait pour servir d'ali- 
ment d ses enfants, et qu'ils ne pourraient 6tre 
saisis ni ali^n^s sous quelque pr^texte que ce 
fut ; qu'il avait de plus ordonnd que si quel- 
qu'un de ses petits neveux d^c^dait sans en- 
fants, sa part accroitrait d ses freres et scenrs : 

Consid^rant qu'en vertu des dispositions 
contenues tant dans le dit acte de donation, le 
testament et le codicile du dit Pierre Roy que 
dans le testament du dit Joseph Roy, la de- 
manderesse Marie Louise Herse n'a droit a 
aucune partie des conclusions de sa declara- 
tion, et en consequence infirme le jugement 
prononce par la Gour Sup^rieure, &c. 

Judgment reversed and action dismissed, 
Drummond, J., dissenting. 

Dorion & Doriortj for the Appellants. 

E, Bofmard, for the Respondents. 



POITEVIN (plaintiff in the Court below). 
Appellant; and MORGAN (defendant in 
the Court below). Respondent. 

Action for Slander — Neio Trial. 

This was an appeal from a judgment of the 
Superior Court rendered by Badgley^ J., on 
the 28th of February, 1866. (See VoL 1, L. 
C. Law Journal, pp. 120, 12L) The action 
had been instituted by a clerk for $10,000 
damages for verbal slander against his em- 
ployer. The plaintiff had been dismissed from 
the service of the defendant for improper con- 



duct and dishonesty, in sending goods out of 
the defendant's store to a confederate, without 
charging them in the books. The case was 
tried before a special jury, and the plaintiff" 
obtained a verdict for $300 damages. It was 
from the judgment setting aside this verdict, 
and ordering a new trial, that the plaintiff in- 
stituted the present appeal. 

Duval, C. J., said there were some cases of 
which the less said the better. It was diffi- 
cult to understand why the plaintiff should 
have thought proper to bring his case before 
that Court. The judgment ordering a new 
trial must be confirmed. 

Meredith, C. J. (S. C.) Drummond, and 
MoNDELET, J J., concurred. 

Chapleau <k Bainville, for the Appellant.. 

John Monk, fbr the Respondent. 



LEPROHON, et al, (defendants in the Court 
below), Appellants ; and VALLEE (plain- 
tiff in the Court below), Respondent. 

Will—F^opre JicUf. 

This was an appeal from a judgment ren- 
dered by Smithy J., in the Superior Court at 
Montreal, on the 30th of April? 1863, grant- 
ing the conclusions of the plaintiff's decla- 
ration, and condemning the defendants to pay 
the sum of £685. 

The facts of the case are as follows : — 
Edouard Martial Leprohon, by will, made the . 
24th March, 1856, left £2000 to each of his 
six children, and in the will stated the amount 
which each had received en avancemeni Whm- 
tie, which was to be deducted from the £2000, 
the balance to be paid after his wife's death. 
The balance coming to Marie Louise Lepro- 
hon, one of the daughters, was £686. In the 
event of the death of any child of the testator 
before him, the legacy made to such child was 
to go to his or her children to be propre to 
such children. Marie Louise Leprohon died 
in 1868, leaving a minor child, Louis Gregory, 
by her marriage with John U. Gregory. The 
testator died in 1869, and Louis consequently 
took hie mother's legacy. This child died 
subsequently at the age of three, and the 
question then arose as to who were his heirs 
with respect to the sum of £685, balance of 
the legacy of £2,000. The father, John UJ 



94 



THE CANADA LAW JOURNAL. 



[October, 1867. 



'Gregory, claimed this sum from the uncles 
and aunts of the child, and his claim not be- 
ing admitted by them, he ceded his rights to 
Alexandre Valine, the plaintiff, who brought 
the present action. 

The defendants pleaded that the sum 
claimed from them was a propre which Mr. 
Oregory could not inherit from his son. They 
also alleged that the transfer by Gregory to 
the plaintiff had not been legally signified. 

The Superior Court maintained the plain- 
tiff's action, on the ground that the testator 
could not by his last will and testament con- 
stitute a sum of money & propre, and that the 
legacy in question was a moveable. The de- 
fendants appealed. 

Duval, C. J., said they were all of opinion 
that the judgment must be reversed for the 
reasons stated in the ConndiranU. 

Badgley, J., said it was quite clear that 
the testator intended his property to be equally 
distributed among his children, and it was 
also clear that he wished the husbands of the 
daughters to participate. 

Drummond, and Mondelet, JJ., concurred. 

The ConsicUrants of the judgment are as 

follows : — 

Yt que E. M. Leprohon, par son testament 
fait et re9u par le Leblanc et conlrere, N. P., 
a Montreal, le 24 Mars 1856, a entre autres 
legs et dispositions solennelles, ordonne com me 
condition absolue du legs universel y contenu, 
que tous les deniers qui se trouveraient dans 
la succession apres les dettes et charges 
payees, seraient propres aux enlants du testa- 
teur, et seraient employees en achat d' heri- 
tages et de parts de Banques qui seraient 
egalement propres aux dits enfants en vertu 
du dit testament. Considerant que la recla- 
mation du demandeur est fondee sur une ces- 
sion transport a lui consenti par Gregory, 
pere du mineur enfant et legataire du testa- 
teur, lequel Gregory pretend avoir herite en 
sa qualite de pere du dit mineur des deniers 
par lui cedes et transportes: Considerant 
que les deniers ainsi transportes sont partie 
des deniers legues par le testateur sus nomme 
au dit mineur Louis Gregory, et d' apres les 
dispositions contenues dans le susdit testa, 
ment doivent etre distribues comme biens 
propres dans la succession du dit enfant 



mineur, et en consequence que le dit Gregory 
comme pere du dit enfant, n'a pas herite des 
dits deniers et n'a pu les transporter au de- 
mandeur: Considerant en consequence que 
dans le jugement, il y a erreur, &c. Judg- 
ment reversed, and action dismissed. 

Lafrenaye & Armstrong^ for the Appellants. 

Leblanc, Cassidy, d: Leblanc, for the Res- 
pondents. 



RECENT ENGLISH DECISIONS. 



Winding up — Contributory, — A. on being 
invited to become a director of a banking 
company about to be established gave a ver- 
bal assent, provided he should be satisfied 
that a certain proportion of the capital had 
been subscribed, and that certain persons 
named in the prospectus as directors would 
actually join the board. He attended one 
board meeting, and so far took part in the 
business as on that occasion to sign a cheque 
together with one of the directors. On re- 
ceiving, a few days afterwards, a letter of 
allotment of the shares necessary to qualify 
him, he at once returned it, declining at the 
same time to act as director, as he was not 
satisfied upon the two points stipulated for 
by him. The secretary wrote back, stating 
that A's "resignation" had been accepted. 
A. had nothing more to do with the bank. 

Held, that he was not liable as a contribu- 
tory. Austin^ s case, Law Rep. 2 Eq. 435. 

Set-off^ Banker^ s Lien. — A. being indebted 
to bank B. for advances, handed to them cer- 
tain marginal receipts of bank C. for £2000, 
representing deposits lodged thereuntil advice 
of payment of certain bills on a firm at Bom- 
bay, and discounted by A. with that bank j 
the course of dealing being for bank C, upon 
receiving the bills, to pay over to A., or place 
to his credit in his banking account, less than 
the full discount value of the bills, retaining 
the difference as a security for payment in 
full at maturity of the discounted bills. When 
advised that the bills had been paid in full, 
the bank was in the habit of carrying over 
the retained margin to the credit of A. in his 
general banking account. Notice of A^s as- 
signment of the marginal receipts was given 



October, 1867.] 



THE CANADA LAW JOURNAL. 



95^ 



by B. to C. on the same day that A., who 
was largely indebted to C, upon an over- 
drawn account, and upon contingent liabili- 
ties upon bills of exchange not then matured, 
suspended payment : — Heldj as between B. 
and C, that B. was entitled to the £2000 
covered by the marginal receipts, subject only 
to a set-off of any sums actually due and pay- 
able to G. by A. at the time when such mar- 
ginal receipts became payable, upon liabili- 
ties contracted before notice was received by 
C. of the assignment to B. Jeffryes v. Agra 
and Mastemum^s Bank, Law Rep. 2 Eq. 674. 
Bonus to Trustee or Mortgagee. — ^A trustee 
has no right to exact or charge any remunera- 
tion or bonus in respect oi great advantages 
accrued to the cestuis que trust from services 
incident to the performance of the duties im- 
posed by the deed of trust. Barrett v. Hart- 
ley, Law Rep. 2 Eq. 789. 

Master and Servant — Liability of Master to 
Servant for Negligence — Foreman a FeUow 
Servant, — The rule, that a master is not 
liable to a servant for injuries sustained 
from the negligence of a fellow servant in 
their common employment, is not altered 
by the fact that the servant guilty of negli- 
gence is a servant of superior authority, 
whose lawful directions the other is bound 
to obey. — The defendant was a maker of 
locomotive engines, and the plaintiff was 
in his employ. An engine was being hoisted 
(for the purpose of being carried away) by 
a travelling crane moving on a tramway 
resting on beams of wood supported by 
piers of brickwork. The piers had been 
recently repaired, and the brickwork was 
fresh. The defendant retained the general 
control of the establishment, but was not 
present ; his foreman or manager directed the 
crane to be moved on, having just before or- 
dered the plaintiff to get on the engine to clean 
it. The plaintiff having got on the engine, 
the piers gave way, the engine fell, and the 
plaintiff was injured. This was the first time 
the crane had been used and the plaintiff 
employed in this manner : — Held, that 
there was no evidence to fix the defen. 
dant with liability to the plaintiff: for that, 
assuming the foreman to have been guilty 
of negligence on the present occasion, he 



was not the representative of the master 
so as to make his acts the acts of the master ; 
he was merely a fellow servant of the plain- 
tiff, though with superior authority ; and there 
was nothing to show that he was not a fit per. 
son to be employed as foreman ; neither was 
there any evidence of personal negligence on 
the part of the defendant, as there was nothing 
to show that he had employed unskilful or 
incompetent persons to build the piers, or 
that he knew, or ought to have known, that 
they were insufficient. Feltham v. England, 
Law Rep. 2 Q. B. 33. 

Debtor and Creditor — Composition Deed — 
Fraud, — Declaration on the money counts^ 
Plea, that by a deed of arrangement made 
in pursuance of the law of New South 
Wales, and made between the defendant 
of .the first part, certain trustees of the 
second part, and the creditors of the de- 
fendant named in a schedule to the deed 
of the third part, the defendant assigned 
all his estate to the trustees in trust for 
distribution equally among all his credi- 
tors; and that by the deed the parties of 
the first and second parts did, if and when 
the deed should have been executed by four 
fifths in number and value of the creditors, 
release the defendant from all demands, &c. f 
that the deed was executed by such majority, 
and amongst others by J. W. D. (one of the 
plaintiffs) ; and that the defendant was re- 
leased from all causes of action. The repli- 
cation, on equitable grounds, averred that the 
plaintiff, J. W. D., executed the deed on the 
faith of the several provisions therein con- 
tained, but that it was never executed by any 
of the other plaintiffs; that the defendant 
agreed with certain of his creditors^ being 
other than the plaintiffs, to pay or secure to 
such creditors, in consideration of their exe- 
cuting the deed, certain pecuniary and valu- 
able benefits and preferences over the others, 
and thereby induced such preferred creditors 
to execute the deed ; and that such agreement 
was made, and such execution by the preferred 
creditors procured, without the knowledge or 
consent of the plaintiffs or of the creditors of 
the defendant other than the preferred credi- 
tors; and that the defendant procured the 
deed to be executed by such majority as in 



^6 



THE CANADA LAW JOURNAL. 



[October, 1867. 



the plea mentioned by the fraudulent agree- 
ment: — Heldj on demurrer, that the deed 
-was void against the plaintiffs, on the ground 
that, in order to make such a deed binding 
upon the creditors, there must be perfect good 
faith between all the creditors and the debtor, 
and no creditor be induced to sign the deed in 
consequence of receiving some benefit l^yond 
the rest of the creditors. Dauglish v. 
Tennent, Law Rep. 2 Q. B. 49. 

Q!UO Warranto — Void Election, — The Court 
'will make a rule for a quo warranto inform- 
ation absolute, although the defendant has 
resigned the office, and his resignation has 
been accepted before the rule was obtained, 
where the object of the relator is, not only 
to cause the defendant to racate the ofiice, 
but to substitute another candidate at once 
in the ofiice; as in such case the relator 
is entitled to have judgment of ouster or a 
•disclaimer entered on the record. Eegina v. 
Blizardj Law Rep. 2 Q. B. 65. 

Companif — Registration of Transfer of 
iSAargs.— Section 16 of 8 Vict. c. 16, (Eng. 
Stat.) enacts that no shareholder shall be 
entitled to transfer any share, after any 
call has been made in respect thereof, until 
he shall have paid such call, nor until he 
lahall have paid all calls for the time being 
due on every share held by him: — Heldj 
that the section only applies to the transfer of 
shares on which a call can be and has 
been made, and has no application to the 
transfer of shares on which all the calls have 
been paid j and a company, therefore, is 
bound to register a transfer of stock, although 
the transferror be the holder of shares onwhich 
there are calls unpaid. Hvbhersty v. The 
ManchesteTj Sheffield and Lincolnshire Bail 
way Co,j Law Rep. 2 Q. B. 59. 



A Quaker Juror. — On Monday, at the 
Court of Quarter Sessions, Darlinghurst, the 
name of a juror was called, and in response, 
An elderly man with a low-crowned and very 
broad-brimmed hat on his head, made his ap- 
pearance, to the slight astonishment of the 
Judge and the amusement of many spectators. 
The following interesting dialogue then took 
place. Judge Simpson — Have you any objec- 
tion, Mr. J to take your hat off in this 



Court ? Juror — ^I have, your Honor j I object 
on principle. Judge — I do not recognise your 
principle, and if you do not take your hat off, 
I shall fine you for contempt of Court. Juror 
— We believe in this principle, your Honor. 
We believe it to be a mere worldly custom to 
take off hats. We carry good will, love, and 
good intentions in our hearts toward our fel- 
low-men. Judge — What is your persuasion ? 
Juror — Friends. Judge — ^Then you are not 
a Quaker? Juror --The world, your Honor, 
calls us Quakers. My class do the same as 
I in this matter. We love our fellow-crea- 
tures, but we cannot do as they choose to 
make us. I am one of Her Majesty's loyal 
subjects, none more so, and I carry love and 
good will in my heart into this Court. Judge 
— Then you do not come here in contempt of 
this Court, but from some conscientious prin- 
ciple ? Juror — ^Yes, your Honor, from a con- 
scientious principle. Judge — Were you ever 
in this Court before ? Juror — ^Yes. Judge — 
Did you then take your hat off? Juror — No, 
except for my own convenience, when the 
weather was oppressively hot. Judge — ^Do you 
never take your hat off? Juror — ^Yes; not 
in obedience to any custom, but for my own 
convenience. Mr. Carroll, solicitor, inti- 
mated that he was present in Court (Dublin) 
some years ago, when a person appeared be- 
fore his Honor, Chief Justice Lefroy, in a 
similar manner to this Juror. Judge Simp- 
eon — And what did that judge do? Mr. Car- 
roll^ — What your Honor will probably do- 
look over it. His. Honor said he could not 
allow the Juror to sit with his hat on among 
the Jury, and the better course would, per- 
haps, be to let him go altogether. The Juror 
at once bowed his acknowledgments to the 
Judge and left the Court. — Sydney Umpire. 



The Three Degrees of Compaaison. — 
The following was perpetrated by Judge Hoar 
of Massachusetts. A gentleman remarked at 
dinner that A., who used to be given to 
sharp practice, was getting more circumspect. 
" Yes," replied Hoar, " he has reached the 
superlative of life ; he began by seeking to 
get on, then he sought to get honor, and now 
he is trying to get honest." 



^November, 1867.] 



THE CANADA LAW JOURNAL. 



97 



Mt tR»nnA» ^nw ^ontunl 



Vol. in. NOVEMBER, 1867. No. 6. 



OUR ENQUETE SYSTEM. 

Those of our readers who were present at 
the rendering of judgments in Montreal on the 
29th of October, heard a great deal about the 
mode in which enqueies are too often conduct- 
ed, and the style in which depositions are 
reduced to writing. In fact hardly a term 
goes by without complaints from the Bench 
respecting the needless multitude of badly 
written depositions, which the judges are com- 
pelled to wade through in search of the facts 
bearing upon the issue. 

These complaints naturally lead us to revert 
for a few moments to certain correspondence 
which appeared in this Journal about two 
years ago. In October, 1866, a forcible writer, 
and a lawyer of high standing, signing him- 
self " Q." (Vol. 1., p. 48), commented in the 
severest terms upon our Enqu^te system, re- 
commending that all causes of importance, 
where iacts have to be appreciated, be 
tried before a jury. This was followed in the 
January number of 1866, (Vol. 1. p. 78), by 
a communication signed ''Q. 0.,'^ from the 
pen of one of our mopt eminent Queen's 
Counsel, in which the entire abolition of the 
Enqulte system was urgently advocated. — 
"If each case," wrote 'Q. C.,' "were tried 
'^ before a judge in the same way that a case 
" would be tried before a judge and jury, — not 
'^ here, (for we have, unfortunately, engrafted 
" on our trial by jury, a bastard system of 
^^€nqidte)j but as in England, the United 
"States, Upper Canada, and in fact every 
" part of the civilized globe, where the system 
"of trial by jury is practised, the judge him- 
^^sdf taking full notes of all the essential 
^^points of the emdence, — I venture to 
"assert that justice would be more prompt- 
"ly, more correctly, and in every respect 
" better administered, than it either is or 
" could ever be hoped to be under a system so 
" peculiarly Lower Canadian as ours is."— 
* Q. C* concluded his remarks by inviting the 
criticism of the profession upon his suggestions. 



but to this day no one has had a word to 
say in defence of or apology for the existing 
system. It is a fair presumption, therefore, 
that the system is really indefensible, and that 
a usage, worthy only of the dark ages, is ad- 
hered to from a blind regard to the practice of 
our predecessors. 

Lawyers are naturally conservative, and 
very properly so. Great changes should not be 
lightly made, nor without the most careful in- 
quiry and consideration. But adherence to the 
old track should not be continued too long, and 
the time has now arrived when the demand for 
an inquiry into our enquSte system must be 
made, and be made with urgency. Legislation 
on the subject might fitly be preceded by a 
commission for obtaining evidence of the work- 
ing of the present system, and ascertaining the 
views of the bench and leading members of 
tlie bar, though we doubt whether the evil is 
not too palpable to be disputed. 



THE COURT OF APPEALS. 

In the report of Lacombe v. Dambmirghs^ 
printed in the present number, the reasons 
assigned by the Hon. Mr. Justice Aylwin for 
his resignation, are included as a matter of 
historical interest. It is only right to com- 
plete the record by the insertion of the oflScial 
statement promulgated by the other members 
of the Appeal Bench on the day following 
Judge Aylwin* s announcement. The state- 
ment was first made verbally by Mr. Justice 
Drummond, and was we believe, reduced to 
writing under the supervision of the Court, 
a copy being sent to each of the daily news- 
papers. It is as follows : — 

Mr. Justice DaimMOND : " The causes of the 
delays which are complained of ought to be 
attributed to the Executive, who neglect, we 
know not for what reason, to provide an effi- 
cient remedy for the actual state of things, 
which I have had occasion to notice myself. 
The term commences at Montreal on the first 
of the month, and finishes on the ninth. It 
is necessary that the judges hasten to Quebec 
to open the Court, which lasts to the 21st. — 
Now it happens that whilst the roll in Mon- 
treal is ordinarily heavy, it is nearly always 
light at Quebec. My colleagues know als«. 



98 



THE CANADA LAW JOURNAL. 



[November, 1867. 



as well as I do^ that they never pass the term 
at Quebec without the roll being called 
four or five times. It is certain that the du- 
ration of the term at Quebec, to say the least, 
is sufficient relatively to expedite the work, 
while at Montreal it is the contrary, and if the 
term at Montreal began after the close of that 
at Quebec, the Court would be able to pro- 
ceed day by day as the roll appeared ; all would 
go for the best and we should not see eighty- 
five causes inscribed on the roll. The 
way to remedy the grievances complained o^ 
is to change the periods at which the terms 
are held, a change that can only be made by 
the Executive or the Legislature. People 
should not, therefore, blame the judges because 
it is not done. As to the causes en d6lih&r^ 
what has been said is without foundation. — 
There are only upon the roll two old dSlib6r^. 
One is the cause of Dufaux vs. Herse, which 
is an affair of great importance upon which 
the Judges could not agree. The other old 
d6Ub&4 is the Corporation of William Henry 
V8, Geuvremont ; if the Court has not 
rendered judgment sooner in this cause, it is 
because the parties asked it to be deferred.-* 
Mr. Lafrenaye here present will admit this. 

Chief Justice Duval: The list of (2^2t^^ 
contains only 15 causes, of which 13 have 
been pleaded in the last term. The mere in- 
spection of this list is sufficient to show how ill- 
founded are the complaints against the Bench. 
The cause of the delays is, to my idea, not within 
the control of the Executive or the Court, but 
it ought to be imputed in a great measure to 
the Bar itself, certain advocates causing a 
considerable loss of time by out of the way 
arguments to sustain elementary points, which 
their adversaries care little to contest or con- 
tradict. At the same time they consider them- 
selves unjustly treated by the Court if they 
are obliged to confine themselves within rea- 
sonable limits. It has been said that the 
Court did not open before eleven o'clock ; this 
is incorrect. The Court always opens at 10 
o'clock except on some days when judgments 
are rendered, the judges being then detained 
in chambers a longer time in their delibera- 
tions. At all times the opening of the Court is 
late on the day on which the judgments are 
delivered. It was so in the time of Judge 



Sewell and is so to-day; my honourable 
colleague, Mr. Justice Aylwin, will admit this 
without doubt." 



NOVA SCOTIA JUDGES. 

The following paragraph appears in the 
daily papers : 

" The Judges of Nova Scotia have refused 
to accept their quarter's salaries at the rates 
formerly paid in that Province — ^from £700 to 
£800 per annum,-— claiming the right to be 
paid, since the Ist of July, at the same rate 
as the Canadian Judges, being nearly dou- 
ble their former salary. Judges of New Bruns- 
wick are supposed to be taking the same 
course. The case is under the consideration 
of the Government," 

The above, if true, exhibits the Bench of 
Nova Scotia in a very unfavorable light. — 
Surely the members of that Bench are aware 
that the salaries of Canadian Judges are iar 
from being uniform, varying in fact even in 
the Superior Courto, from £700 to £1250. 



PRIVY COUNCIL. 



Gut v. Gut : — The appeal in this case has 
been dismissed by the Privy Council, with 
costs, £241. 8. 8. 

Ellice v. The Queen.— The appeal to the 
Privy Council, on the part of the Crown, has 
beendeclared abandoned, no proceedings being 
had, 

Macdonald & Lambe. — The appeal in this 

case was dismissed by the Privy Council, 
12th July, 1867, with costs £295. 1.8. 



THE ROWLAND WILL CASE. 

The case of the will of Sylvia Howland of 
New Bedford, Massachusetts, is exciting 
much interest from the novel character of the 
evidence introduced. Miss Howland, who died 
in 1865, left about $2,000,000 by will, mainly 
to people who were her attendants during her 
last illness, but who were not her relatives. 
Her niece. Miss Hetty Robinson (now Mrs. 
Green), conteisted her aunt's will^ which gave 
her only $70,000 annuity. It seems that Miss 
Howland made a will leaving her entire prop- 
erty to Miss Robinson, and that she subse- 
quently made another unfavorable to her niece. 
However there was found attached to the first 



November, 1867. 



THE CANADA LAW JOURNAL. 



99 



of these two wills a paper sewed to the first ' 
page,8tating that she (the testatrix) wished that 
to be considered her true will, whatever subse- 
quent one she might in the feebleness of age 
be influenced to make. On this document, 
which has three signatures, the niece relies. 
The genuineness of these signatures is denied, 
the allegation being that they were traced 
from the si^atures of the original will. The 
three signatures on the attached paper are 
found on examination to coincide with mathe- 
matical exactness, not only line for line, 
letter for letter, but each having exactly the 
same slant towards the base of the sheet. It 
was proved that a remarkable similarity exist- 
ed between all Miss Howland's signatures 

The most, curious testimony in the case is that 
of the recently appointed Superintendent of 
the Coast Survey, the celebrated mathemati- 
cal professor at Harvard, who applied to the 
matter the law of probabilities. Having as- 
certained the relative frequency of coincidence 
by comparing many of Miss Howland's signa- 
tures, he computed that in her case the phen- 
omena of three absolutely identical signa- 
tures "could occur only once in 2,666,000,- 
000,000,000 times.'' In conclusion, Professor 
Pierce stated, "Under a solemn sense of the 
the responsibility involved in the assertion, I 
declare that the coincidence which has here 
occurred, must have had its origin in an inten- 
tion to produce it." 

A correspondent has sent to the Pali-Mail 
Gazette the following story in illustration of 
this question of identity of signature: 

" Some years ago a gentleman was sued by 
one of his friends before the Civil Court in 
Rome on a promissory note. The defendant 
pleaded that the signature was a forgery. The 
judge desired one of the attendants to summon 
Toto, a well known scribe, who earned his 
livelihood by writing letters for peasants and 
making out petitions for alms asked by some 
of his neighbors from the judge and other 
wealthy persons. Toto was desired to turn ex- 
pert and nelp the j udge to ascertain the truth of 
the defendant's plea. The plaintiff had brought 
with him an unquestionable signature of the 
defendant's attached to a letter, and the case 
was adjourned until Toto could make his re- 
port next morning. Without any hesitation 
he said : * If the court will lay the promissory 
note upon the letter it will be found that the 
two signatures cover point for point the same 



space, and as it is impossible for any man who 
writes freely to make two signatures so per- 
fectly identical, I am sure that the promissory 
note was not signed by the defendant, but that 
his signature was traced from his letter.' The 
judge at once decided in favor of the defend- 
ant." 



Court op Queen's Bench. — Appeal Side. 
— Reserved Cases. — Regula Generalis. June 
Isc, 1867. It is ordered that tke clerk of this 
Court, immediately upon the receipt of the 
papers transmitted, in a case reserved for the 
opinion of this Court, shall set dowii such 
case for hearing on the first juridical day of 
the then next ensuing term. 



Writs op EaROR.-^i^e^Za Generalis, — 
June 1st. It is ordered that the plaintiff in 
error in all criminal cases shall file an as- 
signment of errors on the first juridical day 
after the day of the return of the said writ. — 
That the joinder in error shall be filed on the 
first juridical day following the filing of the 
assignment of errors. That the clerk of this 
Court on receiving the joinder in error, shall 
forthwith set down the cause to be heard on 
the errors assigned. 



APPOINTMENTS. 

Joseph Elliott, Esq., to be Assistant Trea- 
surer of the Province of Quebec. (Gazetted 
26th October, 1867). 

Jean Baptiste Meilleur, Esq., M. D., to be 
Deputy Registrar of the Province of Quebec. 
(Gazetted 26th of October, 1867). 

George Boucher de Boucherville, Esq., 
Advocate, to be Clerk, Master in Chancery 
and Accountant of the Legislative Council of 
the Province of Quebec. (Gazetted Nov. 2, 
1867.) 

Pierre Leoare, Esq., Advocate and Queen's 
Counsel, to be Assistant Clerk, Master in 
Chancery, French translator, and Assistant 
Accountant of the Legislative Council of the 
Province of Quebec. (Gazetted Nov. 2, 1867.) 

Simeon Lesaoe, Esq., Advocate, of Mon- 
treal, to be Assistant Commissioner of Public 
Works and of Colonisation. (Gazetted Nov. 
2,1867.) 



THE CANADA LAW JOURNAL. 



(November, 1867. 



BAMKBDFTCY— ABBI(iIni£«T6.— FBOTDICES OF ONTAEIO AND QUEBEC. 



Audenoiif Arfhi 




.. A. Q. Northmp. 

.. ThiH. Miller 

.. A.J.D0DI7 

. . r. Bkuvagean. 

. . h. L«WT»OTI, , 



Chulebola, Alphonio, (IndlTlduDT } 
and M partner of A. Cbarlebolik } 

Clarke,' Albert, and Wm.'BDtberfbrd. 

Colglii, Robert 

DeiSie, Germain, (ladltidnallT and I 

u partner of A, Cbarlebela & Co. j 

DIel&ibasher, rrederlok 



Dnnlop, Bobnt, (IndiTidnallT aodl 

u purtaer of Jm. Hclptf re ft Co, J 

Dnnn, Jnitni 



GnvbCcl, Hiohaei... 

Gnndrr, Kdwtn 

Uonn. Bobert 



•ioe BoDohard). . 



Kurboio, 
HoHauM, 



ioHaucn, J I 
[oUeoBn, G 



Middleton ft Co., Wm. . . 



Moimtjor.i 
Nlsbol, PeK 
O'Hlggliu, J 
OiiiDMi,En* 



PuenI, Alounder. 

Fldgeon, Joiepb.fc Co... 

Pagne,Georg* 

Forteou, Bobert 

PanliDjSunmel 



Cobonis 

Tomiablp of Op*. . . 
"Mtorale 



Bhioard, George I>ewla 

Biddle, Andiev J., liudiTidnalir J 
and u partner of Honatun ft j 
KfddlB I 

St. Laurent, IVm., {tndirldnallr and 1 
aspartnerof St. Laurent ft Co... | 

Saol, Hasrj 

Btephauan, John 

Trasj, Bealamln 

Trotter, WflUam 

TamlttBrt, Henrv 

WalkerftSmitb 

Winner, WUliam 



Imnubip of lUmberrj . 



limltloD. ■ . 

Jlontoni!! '. 
Belleville.... 
Btratford. . .. 

ntreal.... 
London 



rowDihIp ofTorbollon . 
Tomuhlp oi Honia. . 



. A.B.Stewart.., 

. George StBTeDwn 
. George J. Gale.. 

. A.B.Stewart,.. 
-1, P, J, JaekMi 
PhUlpS. Boh... 
. W, F. FJndlay.. 
,. ThODiaa ClarkHi 

.'. Tboi. Holntire! 
., E.A.llaenai^ta: 
., Daniel WilMB.. 

. S, roIlDok 

.. ii. lAwraeou,, ,. 
.. mioi. Sanndera.. 

, uClarkaoi 

. PbllipS, RDse.,. 

A. B. Stewart . . . 
Simnet Follook,. 

S.C.Wood _ 

G. A.lfaobacblaD Ci 



Wbitbr.--. 

■■■ Marr'a. 

tTflllBnl! '. '. 
Ooderiob,., 



, , Ttaoa. Sannd'ers . . 

,. T,B. Brown _ 

. W.AJUttleberger E 



rownahlp ofBlanahard , . 



,. Tboa. Chnrober. , 



FIndlaj... 
Itew^.. . 



,. Jamea Holden. 
,. A.B.Stewart, 
,. Alex, UeGregoj 

,. w. r. Findtor. 

,. J.J Mann _ 

.. Wm. U. PatUaon.. 



D Cobonrg. , 
, UndHT.., 
. Wbitby... 



, L. LawTUon,.. 
- oel Pollock 
.Helntjre 



. UoDtreal., , 

. London 

. Goderlctt.., 
. St. Harr'a . 



. . Hagb E 
phSlpt 



:C?ovember, 1867.] 



THE CANADA LAW JOURNAL. 



101 



AN AMERICAN LAWYER IN LONDON. 

The Hon. I. F. Rsdfield, the author of 
several well-known legal worke^ being on a 
Tifiit to England^ has written several letters 
to the American Law Register (of which he is 
one of the editors), giving his impressions 
of English Courts and Judges. We make 
some extracts of interest. 

^'Bj being in London one learns some 
things about the administration of justice and 
the course of Law Reform, which would sel- 
dom or never come to the knowledge of an 
American lawyer at home. But it is, after 
all, matter of surprise how very little of that 
which it is most important to know in regard 
to English jurisprudence may not be fully 
understood by a careful study of the Reports, 
and a diligent reading of the Law Journals, 
and the elementary treatises. And the very 
little that we do come more fully to under- 
stand by a closer inspection, or to understand 
differently, perhaps, from what we otherwise 
should, cannot be regarded as altogether of 
unmixed good. 

For instance, one cannot feel quite the 
same veneration for the wisdom of a decision 
in the British Court of last resort, that 
august tribunal, the House of Lords, after 
carefully watching the course of a trial there, 
that he would from merely reading and re- 
flecting upon the subject. One naturally 
reflects upon a subject of that character, with 
some reference to the vastness of the interests 
at stake, and cemes to regard the character 
of the Court which gives them their final 
shape and destination, as important and 
weighty, somewhat in proportion to the vast- 
ness or the insignificance of those interests in 
themselves. And men themselves, while sit- 
ting in the seat of justice, evoke greater and 
nobler powers of reflection, discrimination, 
and judgment, as the demands for the exer- 
cise of such powers arise. Hence, we very 
naturally expect the weight and dignity of 
the English House of Lords to rise above 
that of all other judicial tribunals, in propor- 
tion as the vastness and variety of the ques- 
tions finally determined by it are higher and 
greater than those of almost any other Court. 
But when we come to view it with the naked 



eye of sense, we feel greatly in danger of losing 
the ordinary standard of weight and measure- 
ment. To an American it has very much 
the appearance of a trial before a committee 
of the legislature, with even less form and 
ceremony, if possible. It is true that lookers- 
on approach with something more of reserve. 
They meet more public men and more subor- 
dinate officers, and at first blush there is 
more of authority and solemnity in the going 
forward of the hearing. But this, so far as 
any undue reserve is concerned, is rather 
apparent than real; for the moment one 
breaks through the crust of this official re- 
serve, he finds himself accepted in the fullest 
and most cordial manner, and thereafter 
really treated with more watchfulness of atr 
tention, and less of official hauteur, than 
almost anywhere else. So that all one needs, 
in such cases, is the proper introduction to 
secure the fullest and most considerate atten- 
tion 'f or, if he choose to float along with the 
mass of spectators, and to conform to the 
mere outward conventionality, which is by 
far the readiest and most successful mode of 
finding out the exterior of judicial procedure 
everywhere, there will not be the slightest 
obstacle to 5tond[m^ all day in the purlieus of 
an English court of justice, or sitting, indeed, 
if one can only find room, and a chair or seat 
to sit upon. 

But to return to the House of Lords. The 
room itself is a most complete model of grace- 
ful and elegant architectural fitness and pro- 
portion. It is regarded, both in effect and in 
detail, as one of the most perfect specimens 
of architectural beauty in the world. It 
would be impossible, in a communication of 
this character, to give the slightest outline of 
its proportions or adaptations, and especially 
of its many perfect gems of beauty in the 
filling up of the detail. Suffice it to say, 
that it is the very chefd'osuvre of Sir Charles 
Barry's great and crowning work of life, the 
Westminster Palace or Parliament Houses, 
covering nearly eight acres of ground, and 
affording the most perfect model, in modern 
times, of the rich and elegant tracery of the 
Gothic architecture. The throne and chair 
of state for the Queen to occupy in opening 
Parliament and other state occasions, stands 



102 



THE CANADA LAW JOURNAL. 



[November, 1867. 



at the head of the chamber of the Lords. 
This is approached on every side by three or 
four circular steps, giving two or three feet in 
elevation ; and a small space beside the steps 
is railed off from the main area of the room, 
and surrounds the throne. The upper end of 
the middle space between the seats in the 
main hall occupied by the Lords, is occupied 
by the woolsack, of which we have all 
heard so much, and really know so little. 
It is covered with red velvet or plush, or 
some other rich material, and is nearly six 
feet square, being divided unequally by a 
kind of board rising near the Chancellor's 
back, who sits upon the side remote from the 
throne, facing the house. Front of the 
Chancellor is a large table surrounded by 
the clerks and under-clerks, and opposite 
thit*, on the front bench at the right, are the 
members of the ministry belonging to the 
House of Lords, and on the opposite side are 
the leading Lords of the opposition, and the 
supporters of each side occupy the back 
benches on either side. Further along 
towards the principal entrance of the hall is a 
space about ten feet square, around which the 
Lord Chancellor and the other Law Lords 
sit during the argument of appeals from the 
Courts in England, ^Ireland, and Scotland. 
The bar is facing this, on the side of the 
entrance, being about six feet square, and 
fenced off from the area occupied by the Law 
Lords by a single board rising about breast 
high, with shelves just below on which the 
advocate may rest his books and papers. 

There is one feature in all English 
Courts, so far as we have observed, which is 
worthy of all commendation, and it is one 
which we do not always witness in the Ame- 
rican Courts, to the same extent. We mean 
the entire absence of all apparent anxiety to 
bend the decision to meet any preconceived 
theory, either of politics, religion, or morals, 
or even of philosophy. In other words, it is 
a seeming indifference to the present popular 
sentiment. We say the present popular sen- 
timent, because we do not intend to intimate 
that a judge, any more ny other man, 

should attempt to educate himself up to the 
point of absolute indifference to a wise, far- 
seeing, and just public opinion ; or that he 



can, if he would, feel entirely indifferent to 
that just boon of a good name and fame, 
which is the inevitable concomitant of worthy 
actions worthily performed. All we mean is, 
that a judge, as well as any other public man, 
or private man indeed, who in all that he 
says, and all that he does, is measuring 
himself and his conduct by the low standard 
of present public opinion, is not likely to ac- 
complish any very heroic deeds, or to initiate 
any very permanent or valuable reforms, 
either in legislation or general jurisprudence. 

It is certainly a very pleasant sight to Bit 
in an English Court and witness the entire 
absence of all rivalry, not only between the 
Court and the bar, but apparently between 
the different members of the bar. Court and 
counsel alike seem to feel that every other 
consideration must be laid aside except that 
of reaching the absolute justice of the case 
In this pursuit thereMs observable a quiet- 
ness in the course of the arguments of coun- 
sel, and especially in the conversational 
discussions between the Court and the coun- 
sel, which cannot fail far more effectually to 
enable each to see the other's views, difficul- 
ties, and doubts, than if the same were had 
in a spirit of controversy and opposition, and 
with a disposition occasionally apparent in 
our own country, to show the spectators the 
superiority of the bench above the bar. 
Nothing could more effectually belittle the 
Court, without in the same degree elevating 
the bar. A truly great judge is never jealous 
of any one, and least of all, of his bar, which 
is his brightest crown, the very jewel of his 
judicial life." 

The last paragraph which we have quoted 
is not without application in Montreal. 
Judge Redfield concludes his first letter with 
an account of some cases he heard tried, and 
remarks: "We noticed with especial gratifi- 
cation that the English judges address the 
jury sitting, the jury also remaining in the 
same position. We have long regarded this 
as the only mode in which a case could be 
fairly presented to a jury by the Court, and . 
practised it during most of our own long 
period of service in that capacity, but we 
believe this is rather an exceptional mode of 
proceeding in American Courts, and as far as ^ 



November, 1867.] 



THE CANADA LAW JOURNAL. 



103 



we know, as a general rule, is confined to New 
Hampshire, where the change occurred, at an 
early dajr^ by the embarrassment of one of 
their ablest Chief Justices, the late Jeremiah 
Smithy in delivering his first charge to the 
jury, which proceeded so far.as to compel the 
judge to resume his seat, and to request the 
jury to do the same, when he continued his 
charge in a very able and satisfactory man- 
ner, never after attempting to address the 
jury standing, and this precedent thus acci- 
dentally introduced, soon became general in 
that state, and has so continued ever since. 
It also exists in some portions of Vermont, 
but not universally." 

A note has been appended to the above by 
Mr. J. T. Mitchell, of Philadelphia, another 
of the editors of the Law Register, Mr. Mit- 
chell says : " We venture to suggest that our 
learned colleague is in error. It is the uni- 
versal habit of judges in Pennsylvania to sit 
while charging the jury, and we have occa- 
sionally been present at trials in New York, 
New Jersey, Ohio, and IlUnois, in all of which 
the judge remained seated, and we think the 
iiontrary habit is peculiar and local to the 
New England Courts, even if it obtain in all 
of those. We have the authority of a distin- 
guished ex- judge of the Supreme Court of 
New Jersey for saying, that when he was a 
junior at the bar, it was the general custom 
for the judge to rise in addressing the grand 
jury] but even that has fallen into disuse. 
The only occasion upon which a Pennsylvania 
judge stands is while pronouncing sentence 
of death, and we think the undignified novelty 
of the judge's rising to charge a jury would 
be resented alike by the bench and bar of 
that state, as savoring far too much of advo- 
cacy rather than judicial serenity." 

For the information of readers at a distance, 
we may add here that the invariable practice 
in Lower Canada has been, we believe, for 
the judge to remain seated. The jury are 
directed by the crier to rise when the judge 
begins his charge, but it is usual for the 
judge to direct them to resume their seats, if 
he is going to occupy mach time in addressing 
them. 

The second letter is of such interest that 



we reproduce the whole : " One cannot 
remain for inonths about Westminster Hall 
and Lincoln's Inn, and in daily attendance 
upon the Courts of Common Law and Chan- 
cery, without learning many things of interest 
to the American bar, which he would never 
otherwise learn. But after having received 
such kindness and hospitality from the Eng- 
lish bar and the Enghsh judges as cannot fail 
to inspire feehngs of the most profound and 
grateful respect and affection, one naturally 
feels great reluctance to speak of the detail of 
the administration of justice here, lest, inad- 
vertently, some possible breach of the confi- 
dence of social life might be committed or 
suspected. 

But, speaking only of those things which 
are patent and open to all, it must be con- 
ceded that the English Courts have many 
advantages over us in searching out the 
headspriugs and foundations of the law, 
which must always give the decisions here 
greater weight. On one occasion this was 
made very obvious in the trial of a recent 
suit in equity, on appeal, before the Lord 
Chancellor and the Lords Justices, sitting as 
the full Court of Chancery Appeal, in the 
Lord Chancellor's room. A case was cited 
which had not been fully reported. It was 
the case of TJhe President of the United States v. 
The Executors of Smithson, for the obtaining 
of the Smithsonian fund. The inquiry before 
the Court at the time was, in what name the 
United States might properly sue. It was 
contended, on the one side, and so held in 
Vice-Chancellor Wood's Court, that they 
could only sue in the name of some official 
party or personage, authorized to represent 
the interests of the Government, and to 
answer any cross-bill the other party might 
bring ; while, on the part of the Government, 
it was very naturally insisted that they should 
be allowed to sue in the name given in the 
Constitution, and the only name by which 
they ever had sued in their own Courts. 
This suit was brought in that name and dis- 
missed in the Vice-Chancellor's Court, be- 
cause no personal party had been joined. 
The case alluded to was brought in for the 
purpose of showing that they had be- 
fore sued in the Enghsh Courts of equity 



104 



THE CANADA LAW JOURNAL. 



[November, 186T^ 



in the name of the President of the United 
States. It became important, therefore, to 
fihow how far this case, for the recovery of 
the Smithson legacy, differed from the ordi- 
nary case of the Government suing for the 
recovery of its own property. The Court 
ordered the registrar to bring in the file, when 
it appeared that, by a special Act of Con- 
gress, the President had been authorized to 
sue for and recover this particular legacy, 
thus constituting him a special trustee to 
receive the same on behalf of the Govern- 
ment, and consequently to discharge the exe- 
cutor upon such receipt of the fund. This 
enabled the Court to perceive that it had no 
bearing whatever upon the general question, 
and thus virtually confirmed the impression 
and intimation of the Court of Appeal, that, 
as they expressed it, ^' the Government 
of the United States must be allowed to sue 
for their own property in their own name;" 
and this intimation has been since con- 
firmed by the unanimous decision of the 
full Court of Chancery Appeal. The 
advantage of this ready opportunity of 
consulting the records of equity cases in the 
registrar's office, in order to supply any defi- 
ciencies in the reports, is often witnessed in 
hearings in equity in the English Courts. 
And there are many other traditional benefits 
resulting naturally from being upon the 
ground and having at command all the ap- 
pliances of such ready access to records and 
documents, which can never be transferred 
into a distant country. This of itself must 
always render these localities of great interest 
to Americans. 

And there are some other things one 
meets in the English Courts which naturally 
inspire admiration. The judges seem far 
more familiar with the leading members of 
the bar than is common in our country. 
Being in Court during the whole time of the 
delivery of the almost interminable judgment 
in the late case of Slade v. Sladej in the Ex- 
chequer, when the law and the fact both 
were, by agreement of parties, referred to the 
Court, we noticed billets passing between the 
Court and the counsel engaged in the cause 
in the most familiar manner, indicating the 
most perfect confidence and intimacy. And 



in all the arguments which we have listened 
to in the Courts, either of common law or 
equity, there is a constant conversation kept 
up from the bench, but in such a common- 
place and kindly manner, that the counsel 
against whom suggestions and intimations 
are made, do not seem at all embarrassed by 
them. The wonder seems to be how counsel 
can continue such persevering arguments 
under such multiplied rebuff as sometimes 
fall f^om the bench here. In one case, 
where the argument continued six or seven 
hours, there was a constant argument on the 
part of the bench against the decision of the 
Court below [it being a hearing on appeal]. 
But the constant and repeated intimations 
from the bench that it was impossible to 
maintain the decision of the Court below, did 
not seem in the least to daunt the courage of 
the counsel. 

At the conclusion of his judgment in the 
case of Slade v. Slade, Baron Martin said he 
wished, on his own personal account alone, 
to enter his solemn protest against the prac- 
tice of submitting matters of &ct to the deter- 
mination of the Court instead of the jury.— 
He believed nothing was more unsatis&ctory 
than the trial of matters of fact by the judges. 
He believed the jury the only proper tribunal 
for the determination of matters of fact, and 
he must say that he believed one great reason 
why the decision of mattes of fact by 
the jury was so satisfactory was, that they 
were not required to assign reasons for their 
decisions. He thought it not improbable that 
if jurymen were required to submit to the 
cross-examination of counsel, as to the grounds 
of their verdict, they would be quite as much 
puzzled to find satisfactory reasons for all 
their decisions as any of the witnesses in the 
present case. 

It seemed that the amount of testimony in 
this case oi Slade v. Slade^ was quite fabulous, 
and the cost of procuring it almost monstrous, 
exceeding $150,000. It is true the determina- 
tion of the suit involved an inquiry into the 
validity of a marriage celebrated in Lombardy^ 
an Italian province of the Austrian Empire, 
more than forty years since, upon which de- 
pended the title to a baronetcy and large 
estates. And this incidentally involved in- 



November, 1867.] 



THE CANADA LAW JOURNAL. 



105 



qoiiies into the civil and ecclesiastical law, 
both of Italy and Austria, to such an extent 
as to become, not only very difficult and 
perplexing, but almost impossible of any 
satisfactory determination. There was in con- 
sequence a resort to the testimony of legal ex- 
perts, which was found, as usual, most unsa- 
tisfactory, there being about an equal number 
on either side, and each determined to vindi- 
cate the views of the party for which he had 
been called. This had led, in many instances, 
to a most extended cross-examination, in some 
instances extending over nearly twenty days, 
until in one case certainly, at the earnest re- 
quest of the witness, an adjournment of the 
examination was had, in order to enable him 
to r^ain his health, which had been seriously 
impaired by the extended cross-examination. 
We did not suppose any new light was to be 
gathered from the report of these illustrations 
of the abuse of the duties of experts or of ex- 
aminers of witnesses ^ but it seemed refresh- 
ing to find, that in Westminster Hall, in one 
of the most venerable of her ancient Courts, 
with her skilled and trained counsel, it was 
ibund impracticable to elicit from professional 
experts anything but one-sided opinions. We 
do not know whether there is any inherent 
difficulty in so selecting experts as to render 
them fair and impartial ; but it appears that 
in England as well as in America, when it is 
allowed to be done by the parties, it is not 
easy to obtain any such result. That was the 
great difficulty in regard to the case of Slade 
y.Slade. 

But to return to Baron Martin's protest 
against submitting matters of fact to the 
judges. He said his experience, which was 
now somewhat extended, convinced him that 
almost all the divided judgments which had 
been rendered in that Court arose on matters 
of fact or construction, and not upon mat- 
ters of pure law, in regard to which the 
judges almost never differed. We could not 
but feel gratified to find so experienced and 
able a member of the English bench confirm- 
ing our own opinion, which we had long enter- 
tained, but which we believe is not universal 
with the American bar. There seems to be 
a growing opinion with the American bar that 
the jury are not be relied upon as either fair 



or competent in the trial of matters of fact.— 
We believe that complaint, or the cause of it, 
lies far more at the door of the judges than is 
commonly supposed. If the judge is indiffer- 
ent, and suffers the cause to glide along with- 
out much care how it is decided, or if he is so 
muddy in his own views or in the mode of ex- 
pressing them that he canngt make himself 
understood by the jury, it is not improbable 
that the result of jury trials will become most 
unsatisfactory. But where the judge feels 
bound to master the cause and the testimony, 
and really sums up in a manner to make the 
jury understand the law and the &cts fully, 
and also the applicatiom of each to the other, 
the jury will be able to reach, in the majority 
of cases, a satisfactory result. And a jury does 
relieve the judge from great responsibility, 
and one which it is difficult for any tribunal 
to sustain, where reasons must be assigned for 
every judgment. 

There is so much testimony which is 
either factitious or exaggerated, that it is im- 
possible to decide matters of fact wisely and 
justly without disregarding much of the for- 
mal testimony, in regard to which, there is no 
very obvious reason for its rejection, except 
the vague belief that there must be some mis- 
take about it. But such a reason will not be 
likely to commend, itself to the party who 
loses his cause in consequence of the rejection. 
Hence it has been said that courts of equity 
decide facts by counting the witnesses on either 
side, and that the Chancellor has no scales for 
weighing evidence. There will be some ex- 
ceptions to these general rules, and some 
judges will possess an intuitive knowledge of 
facts, as well as law, and will find some mode 
of satisfying the parties with the results to 
which their intuition leads them. 

There is another thing, which one can 
scarcely fail to admire in the English Courts. 
There is no appearance of haste ) certainly not 
of hurry. Perhaps it is more apparent in pass- 
ing from one Court to another, than anywhere 
else. In an American Court there seems to 
be a kind of horror or dread seizing upon the 
bench the moment one cause is coming to an 
end lest something else should be crowded in 
before the Court can reach the next cause on 
the calendar. Some motion or some question 



106 



THE CANADA LAW JOURNAL. 



tNovember, 1867. 



seems to be the constant dread of the Court 
the moment there is a pause between two 
causes. It is not so much during the progress 
of the hearing, but the moment the final close 
is attained there is a rush for the next cause, 
so as to preclude all interruption. But nothing 
of that kind occurs here. This may be partly 
owing to some constitutional or habitual differ- 
ence in the people of the two countries. For one 
cannot ride across the island of Great Britain 
in any direction, in an express railway train, 
and not ol»erve a very marked difference in 
two particulars between this and our own 
country, in the stops and in the progress. The 
train starts on the moment, at the click of the 
bell marking its time ; it runs with terrific 
speed to its next stopping place, and reaches 
it the very moment it is due. Every thing 
then is quiet ; time enough for all changes, 
and everything is ready, and very likely one 
or more minutes to spare before the time ar- 
rives for departure. This is most refreshing. 
So different from the pauses in railway travell- 
ing in our own country sometimes, where there 
is scarcely time to get out of the train before 
it is off*, as if life and death hung upon losing 
no time at stops. So in Court here. One 
cause is finished. Time is given to breathe ; 
to pack up books and papers, and to get in 
place for taking another cause; and then, 
after everybody gets ready, quietly start off. 

We are by no means sure that a good deal 
of this quiet passage from one cause to another 
is not attributable to the fact that no motions 
can be interposed except upon motion day, 
and then mostly at Chambers. The English 
judges attribute their relief from perplexing 
impediments and motions of every grade of 
perplexity to the fact of sessions at Chambers, 
where most of these motions are heard, and 
where they are attended by solicitors, and not 
in general by counsel. 

And this brings us to dwell for a moment 
upon the different grades of the English bar, 
which are maintained with great punctilio. — 
The sergeants were long regarded as the high- 
est rank of the profession. And now all the 
judges are made sergeants by special writ, be- 
fore they can be sworn in as judges. But 
this is mere form. It is called taking the coif, 
and is regarded as a kind of degree or grade in 



the profession, which must be attained before 
they can be made judges. The order of ser- 
geants was formerly much more numerous 
than at present, and they still compose a se- 
parate Inn, to which all the judges join them- 
selves as soon as they become judges, and 
afterwards are not allowed to dine in the hall 
of their former Inn, except on state occasions, 
(as the Grand Dinner at the close of Trinity 
Term, which fell this year upon the 12th of 
June), when some fifty to one hundred bench- 
ers and invited guests sit down at the high 
table, at the end of Middle Temple Hall, and 
four or five hundred in other parts of that 
vast hall, and partake of a dinner which would 
do credit to the first noblemen in England. — 
After the removal of the cloth, the Master of 
the Temple, as the rector of the Temple 
Church is styled, returns thanks, and the 
benchers and honorary guests retire to the 
Bencher's Boom for dessert, where, fruit and 
wine being served, the president first proposes 
the health of the Master of the Temple, who 
responds in a brief speech. Some other cus- 
tomary toasts follow, concluding with the 
health of the invited guests, who all respond, 
of course, in speeches of more Or less brevity, 
as taste or inclination may suggest. On the 
present occasion, the predominant feeling 
seemed to be a desire for cordial good under- 
standing with the American nation and 
people. Nothing but the entire reciprocation 
of that sentiment was offered in return. But 
the opportunity of reminding them of the &ct 
that we claimed to be something more, and 
better, than a mere aggregation of separate 
sovereign states, held together by compact or 
treaty, was too inviting to be wholly disre- 
garded. It was explained, in some degree, to 
that learned assembly of judges and benchers 
that a constitution which professed to create 
a paramount national sovereignty, and which 
in terms gave a national legislature and a na- 
tional executive, and a national judiciary, 
having the power to enforce its own decrees, 
by its own police, and by the army and navy, 
and which had authority to define the limits 
of national jurisdiction, and to correct the de^ 
cisions of all the State Courts bearing upon 
that point, must of necessity be paramount to 
all State Sovereignty ; and that the result of 



November, 1867.] 



THE CANADA LAW JOURNAL. 



107 



the late national conflict was only to establish 
the decrees of the national courts of last resort, 
declared years before by our great expounder of 
the National Constitution, John Marshall, and 
to enforce the eloquent expositions of our great 
natipnal orator, and senator, Daniel Webster, 
to which men the grand result might be as fairly 
and as truly attributable as to the victories of 
our armies in the field ; to all which these gen- 
tlemen responded with all earnestness and sin- 
cerity, and blessed the hour of our first and ot 
our final independence. After having been pre- 
sent in that grand old hall of the benchers of 
three or more centuries standing, where the 
principles of English liberty had been culti- 
vated and expressed, and having listened to 
the congratulations of the barristers and 
judges, and the encomiums of the elder bre- 
thren towards the younger member^ of the 
same great family of judicial teachers and 
benchers, one could not well believe in any 
natural rivalries or jealousies between the two 
people, except in the matter of each doing the 
best in its power to maintain and defend the 
grand and noble principles of English and 
American liberty. It was a grand and inspir- 
ing occasion, both to the English and the few 
representatives of the American bar. 

But to return from this digression. The 
degree of Queen* s Counsel has now practically 
superseded that of Sergeant. The first rank 
in the profession here next to the judges is 
Attorney and Solicitor-General. Then follow 
some other officials in the profession, such as 
the Queen* 8 Advocate-General in Scotland, 
&c. Then come the Queen's Sergeants by 
special writ, not exceeding two or three ; then 
Queen's Counsel, in the order of seniority of 
commission ; then ordinary barristers. These 
latter act as junior counsel, and the Queen's 
Counsel as seniors. These all wear gowns 
and wigs ; Queen's Counsel wearing silk, and 
the barristers stuff gowns. It is obvious from 
what one hears, that the English bar are be- 
coming more or less weary of being dressed 
up in such artificial costume, and that they 
would be glad, at once, to drop the wig, and 
many of them the gown also. The most 
marked indication in this direction which we 
noticed was in regard to the academic dress 
worn by the students at Oxford. We met hun- 



dreds there with their gowns in their hands, 
as one would carry a coat on a warm day, or 
any other garment, which for any cause had 
become burdensome. That did not seem com- 
mon anywhere except among the students. — 
The professors and tutors, the doctors and 
fellows, all wore the gown with dignified bear- 
ing and apparent self-satisfaction. But young 
men unconsciously catch the sense of the 
outward sentiment, and are proverbially sen- 
sitive to any feeling of ridicule in others to- 
wards either their conduct or their dress. This 
was the only possible explanation of the fact 
of finding so many, both within and without 
the college walls, with their academic gown 
in their hands, when the statutes of the uni- 
versity render it the indispensible badge to be 
worn at all times, in college hours. We be- 
lieve, at Cambridge, there is some dispensa- 
tion in that respect before dinner, and there 
you do not see the gown before that hour. — 
But you see it always at Oxford, either worn 
or carried, and, as it seemed to us, more 
commonly the latter 1 It is wonderful how this 
sense of the ridiculous will crowd out mere 
pageantry with sober and earnest men, when 
it once gets hold. We could not but notice how 
willingly the English judges put aside their 
wigs and gowns at the state dinner, upon en- 
tering the Benchers' Hall, where alone it was 
allowable. There is no place for the show of 
pageantry in dress equal to the Lord Mayor 
of London and the aldermen, when they ap- 
pear on state occasions. Scarlet puts on its 
brightest hues and its broadest borders. Pos- 
sibly in America we are in danger of disre- 
garding forms too much. We h&ve sometimes ♦ 
feared such a result. But one needs only to 
see how much of official duty here consists in 
mere ceremonial to feel reconciled to its en 
tire abandonment. 



THE BENCH AND BAR AT HONG KONG. 

The " scenes' ' in court between judge and 
counsel on the Northern Circuit, upon which 
we commented a few weeks ago, undignified 
as they were, will yet bear favorable compa- 
rison with an incident which is reported by 
the Hong Kong papers received by the last 
mail. Mr. Pollard, Q. C, a barrister who has 



108 



THE CANADA LAW JOURNAL. 



[November, 1867. 



practised in China for the last twenty years, 
was conducting a civil action in the Supreme 
Court at Hong Eong before the Hon. J. Smale, 
Chief Justice of the colony, and some reference 
being made to a Chinaman in the service of 
the plaintiffs in the case, the Chief Justice 
said that as the man was a servant of the 
plaintiffs they should have produced him, to 
which Mr. Pollard, the plaintiffs' counsel, 
replied, ^' You cannot produce him like a piece 
of paper ] let him be subpoenaed in the usual 
way." The judge rejoined that if the witness 
was not produced, he would '^ take that into 
account" in his direction to the jury, upon 
which Mr. Pollard exclaimed, **I will put 
only those witnesses in the box which I, as 
counsel for the plaintiffs, may see fit. I may 
make a mistake, but I will not be dictated to or 
talked down by any one as to what I am to do." 
The Chief Justice, after declaring that the 
language which Mr. Pollard was in the habit 
of using was most disrespectful to the court, 
left the bench, but shortly afterwards returned 
and asked Mr. Pollard if he apologised. After 
a good deal of altercation between the judge and 
the barrister, the case was adjourned '^ inde- 
finitely," his lordship declaring that he must 
have an apology from Mr. Pollard before the 
trial could go on. The litigants, however, 
preferred submitting their differences to arbi- 
tration to waiting for the restoration of a good 
understanding between judge and counsel. 
Two days afterwards (on June 29th) another 
'' scene '* took place, and the Chief Justice 
announced that he would give his decision on 
the matter on July 2, when he pronounced 
MV. Pollard guilty of grave contempt of court, 
fined him two hundred dollars, and suspended 
him from practice for a fortnight, or until the 
fine was paid. His lordship read his judgment, 
which was of considerable length, from a 
manuscript, occasionally, however, interrupt- 
ing the thread of his argument to remark upon 
the deportment of the offending counsel. Once 
Mr. Pollard smiled, on which the Chief Jus- 
tice remarked, " this is very amusing, Mr. Pol- 
lard, but it is law." Shortly afterwards he 
suddenly exclaimed, '^ I am astonished at your 
staring, Mr. Pollard." '' It was a stare of 
astonishment, my lord," remarked the learned 
counsel. ^* Stare on, Mr. Pollard," said the 



Chief Justice ; ''This a subject for staring." 
At another passage in his address his lordship 
paused, and looking at the contumacious bar- 
rister, said emphatically, '' Mr. Pollard, your 
eyes are opened very wide." "And with 
cause, my lord,*' replied Mr. Pollard. His 
lordship pronounced Mr. Pollard to have been 
guilty of six contempts, which consisted brief- 
ly of one "pointed and curt answer," with an 
"apparent" purpose of raising a laugh 
against the Chief Justice; two "tones and 
manners," with " inferences j" one "imputa- 
tion, the converse of what had occurred ;" 
one avowal of a desire not to be " aggressive '" 
and one " tone " "inferring" that Mr. Pollard 
had more respect for the bench, that is, for the 
wooden chair, than he had for its occupant. 
At the conclusion of the Chief Justice's ad- 
dress, Mr. Pollard endeavored to speak, but 
his lordship declined to hear him, and advised 
him to appeal to the Privy Council, or bring 
the matter before the Benchers of the Inn 
of Court, of which he was a member. Popular 
sympathy in the colony appears to be strong- 
ly in &vor of the offending barrister, and the 
fine imposed upon him has been raised by 
subscription in small sums and presented to 
him with an address. — Pall-Mall Gazette. 



A BOOK ABOUT LAWYERS.* 

The gentlemen of the bar who donned the 
blue in the late rebellion, will find many a 
precedent for their conduct in Mr. Jeaffireson's 
book. " Ais to the sarcasms on lawyers for not 
fighting, "said Bulstrode Whitelock (afterwards 
Lord Keeper) in the House of Commons, "1 
deem that the gown does neither abate a man's 
courage or his wisdom, nor render him less 
capable of using a sword when the laws are 
silent. Witness the great services performed 
by Lieutenant General Jones and Commissary 
Ireton, and many other lawyers, who, putting 
off their gowns when the Parliament required 
it, have served stoutly and successfully as 
soldiers, and have undergone almost as much 
and as great hardships and dangers as the hon- 
orable gentlemen who so much undervalued 
them." This same Bulstrode Whitelock was 
captain in Hampden's regiment of horse. On 

* Contiiraed ttom page 88. 



November, 1867.] 



THE CANADA LAW JOURNAL. 



109 



the side of the king fought Herbert, afterwards 
Lord Keeper to Charles H. in exile, and Hyde, 
^ifterwards Lord Clarendon. About the same 
time. Lord Keeper Littleton also drilled a 
■corps of volunteers. John Somers, attomey- 
at-law, father of Lord Chancellor Somers, 
raised a troop of horse, at the head of which 
he rode as captain in Cromwell's army. Dur- 
ing the civil war, a royalist rector, in the par- 
ish church near which his troop was quarter- 
ed, preached violent sermons on Divine Right 
and Non-Resistance, and called down heaven's 
vengeance upon the rebels. Somers sent the 
rector a polite message, requesting him to 
preach more moderately ; but this only served 
to increase his wrath. One Sunday, there- 
fore, when the enemy was in full action, the 
captain took aim and sent a bullet through 
the sounding-board over the parson's head? 
and subsequently explained, that each repeti- 
tion of denunciation would produce a similar 
interruption ; and further, that on each suc- 
cessive occasion, for pistol practice, the ball 
would strike a little lower. This "military 
despotism" soon put a stop to political ser- 
mons. 

Chief Justice Hale, in his hot youth, burn- 
ed with military ardor, and sought to fight 
under the Prince of Orange in the Low Coun- 
tries. Though he was persuaded not to go, 
he sang to his expostulating brothers of the 
law, — 

Tell us not of issue male, 

Of simple fee, and special tale. 

Of feoffments, judgments, bills of sale, 

And leases ! 
Can you discourse of hand grenadoes, 
Of sally ports and ambuscadoes. 
Of counterscarps and palisadoes 

And trenches 7" 

In the next century, Erskine commanded a 
volunteer company of lawyers of Temple Bar, 
christened by Sheridan with the sobriquet of 
"The Devil's Own." The rival corps was 
comp>08ed of Lincoln's Inn men, and nick- 
named by the populace " The Devil's Invinci- 
bles." Although Erskine had been a lieute- 
nant in the army, and used to eat kis obliga^ 
tory law dinners in his scarlet regimentals, he 
s«em8 to have forgotten the Casey of the pe- 



riod, for Lord Campbell says, "I did once, 
and only once, see him putting his men 
through their manoeuvres, on a summer's 
evening in the Temple Gardens ; and I well 
recollect that he gave the word of command 
from a paper which he held before him, and 
in which I conjectured that his / instructions ' 
were written out, as in a brief." Eldon and 
EUenborough were in the rival corps, — "The 
Devil's Invincibles," — but both, unhappily, in 
the awkward squad. Lord Eldon used to say, 
" I think EUenborough was more awkward 
than I was ) but others thought it was diffi- 
cult to determine which of us was the worst." 
This corps had attorneys in its ranks, and it 
was said of it that when Lieut-Colonel CoX; 
the Master in Chancery, who commanded it, 
gave the word " Charge," two thirds of its 
rank and file took out their note books and 
wrote down 68. 8d. As a counterpart of this 
story should be told one of the volunteer com- 
pany of lawyers which was raised a few years 
since, during the apprehension of the French 
invasion. It is said that when the drill-mas> 
ter gave the order " About face," not a man 
of these logical patriots stirred, but that they 
all stood still, and cried, "Why?" Certainly, 
thef>e learned gentlemen cannot be said to 
have felt with the six hundred, — 

" Their's not to make reply, 
Their's not to reason why, 
Their's but to do and die." 

Naturally, no English book of the present 
day, giving any account of social life, would 
be complete without some reference to that 
noble animal, the horse. So the author has 
introduced some five chapters about lawyers 
on horseback. He dwells with fond regret on 
the early days, when the law was forced to 
have more dependence on the saddle, and less 
on the express train } and notices, with evi- 
dent admiration, the hunting lawyers of the 
present day. He extols, too, with vivid ad- 
miration, how "crimson gold, burnished 
steel, and floating ancient, gladdened the 
eye," and of the *' blare of trumpets, rattle of 
armor, tramp of iron, neighing of horses, and 
joyous hum of riders," in^he circuit under 
the Plantagenets. Without any hope for a 
revival of the floating ancient, or blare of 



no 



THE CANADA LAW JOURNAL. 



[November, 186T. 



trumpets, the wish may well be expressed, 
that our profession in America were obliged 
to have more familiarity with horses than es- 
says on warranty suffice to give. It is a no- 
torious fact that the health of a large number 
of our leading advocates is broken down by 
overwork, and by a neglect of out-of-door ex- 
ercise, of which that in the saddle is the best ; 
while in England, the large number of their 
most distinguished lawyers, who have, without 
doubt, done an equal amount of work, and 
have far exceeded their threescore years and 
ten, is a striking proof that the English habits 
in this regard, are far better than our own. 

In the 17th century, it would seem that 
some knowledge of horsemanship was neces- 
sary to all lawyers. Samuel Pepys enters in 
his diary, on October 23, 1660: "I met the 
Lord Chancellor and all the Judges riding on 
horseback, and going to Westminster Hall, it 
being the first day of the term." He also re- 
cords how Sergeant Glynne, an eminent law- 
yer, came to grief at the coronation of Charles 
n., " whose horse feJl upon him yesterday, 
and is like to kill him." I^ater than this, the 
barristers rode their circuits in the saddle, 
while the judges were carried in their private 
carriages. Lord Kenyon, when a young man, 
appeared on a small Welsh pony from his 
native hills. Erskine, too, rode a pony ; and 
Thurlow^s ingenious method of hiring a horse 
without paying for him, has already been re- 
lated. In those days, there was peril not only 
from highwaymen, but from flood and field. 
An amusing story is told of Eldon travelling 
the northern circuit, which is thoroughly 
Scotch in its literal humor. The lawyer was 
about to cross some dangerous sands, contrary 
to the advice of his landlord. "Danger, dan- 
ger," he exclaimed impatiently; "have you 
ever lost anybody there?" "Nae, sir," an- 
swered mine host, slowly, " naebody has been 
lost on the sands: the puir bodies have a' 
been found at low water." In spite of such 
dangers, all historians of lawyers in England 
of former days are wont to extol the plea- 
sures of the circuit, with its feasting and halls 
and circuit mess, — when Scott was Attorney- 
General of the Circuit Grand Court, and used 
to prosecute oflenders " against the peace of 
our lord the junior j" when Campbell opened 



the court with a fire-shovel in his hand as an 
emblem of office; and when an eminent law' 
yer was duly indicted and fined a dozen of 
wine, for the heinous crime of being " the 
best special pleader" in England. Pepper 
Arden (afterwards Lord Alvanley) was indict- 
ed for having said that " no man would be 
such a-fool as to go to a lawyer for advice, 
who knew how to get on without it." The 
archives of the court record : — " In this he was 
considered as doubly culpable : in the first 
place, as having offended against the laws of 
Almighty God, by his profane cursing, for 
which, however, he made a very sufficient 
atonement by paying a bottle of claret ; and 
secondly, as having made use of an expres. 
sion, which, if it should become a prevailing 
opinion, might have the most alarming con- 
sequences to the profession, and was therefore 
deservedly considered in a far more hideous 
light. For the last olfence he was fined three 
bottles. Pd." 

While the barristers were thus in the sad- 
die on the circuit, they had doubtless lefl 
their wives in those dusty, dirty inns of Court 
which are now never graced by women's pre- 
sence ) unless, indeed, when a visit is made 
by a pretty girl, such as Thackeray records, 
with 

" A smile on her face, and a rose in her hair,* 
And she sat there and bloomed in my cane- 
bottomed chair." 

But in those days young couples began 
housekeeping in chambers where they had 
six rooms at their disposal, including "a 
trim, compact little kitchen." " Frequently,, 
says Mr. Jeafireson, "the lawyer over his 
papers was disturbed by the uproar of kis 
heir in the adjoining room." The admirer 
of Dickens will recall Tommy Traddles, with 
his "dearest girl in the world," and her five 
sisters and "the beauty" playing in his cham- 
bers. Of another sort was Sarah, Duchess 
of Marlborough, who came to take advice of 
Mansfield when a young man. The lawyer 
was supping out, and his clerk told him, " I 
could not make out who she was, for she 
would not tell her name ; but she swore so 
dreadfully, that I am sure she must be a lady 
of quality." 



November, 1867.] 



THE CANADA LAW JOURNAL 



111 



The subject of fees cannot but be an agree- 
able one to any lover of his profession, how- 
ever disinterested. Going back as far as the 
reign of Richard U., it is found that lawyers 
were so unprofessional as to go to the clients' 
houses and give them advice. William de 
Beauchamp, claiming the earldom of Pem- 
broke, <' invited," saysDugdale, ''his learned 
counsel to his house in Paternoster Row; 
amongst whom were Robert Charlton (then a 
jadge), William Pinchbek, William Brau- 
chesly, and John Catesby (all learned law- 
yers); and, after dinner, coming out of his 
chapel in an angry mood, threw to each of 
them a piece of gold, and said, ' Sirs, I de- 
sire you forthwith to tell me whether I have 
any right or title to Hastings' lordship and 
lands.' Whereupon Pinchbek stood up 
(the rest being silent, fearing that he sus- 
pected them), and said, * No man here nor in 
England dare say that you have any right in 
them, except Hastings do quit his claim 
therein; and should he do it, being now 
under age, it would be of no validitie.' " The 
scene is full of character : the counsel wait- 
ing; the Norman baron coming out after din- 
ner, and flinging them each their fee, as to a 
<iog; the haughtiness of the language, — '' I de- 
sire you forthwith to tell me," and spite of 
all this, the manly independence of the law- 
yer's opinion. At this time, and for many 
reigns later, it was customary for clients to 
provide food and drink for their counsel. Mr. 
Foss gives the following list of items, taken 
from a bill of costs made in the reign of 
Edward IV. : — 

For a breakfast at Westminster, spent 
there on our counsel, is 6d 

To another time for boat hire in and 
oat, and a breakfast for two days, Is 6d 

In like manner, the accountant of St. Mar- 
garet's, Westminster, entered in the parish 
books, " Also, paid to Roger Fylpott, learned 
in the law, for his counsel given, 38. 8d., with 
4d. for his dinner." Here are some items in 
an old record of disbursements made by the 
^corporation of Lyme Regis: — 

Paid for wine carried with us to Mr. 
Poulett , 3s 6d 

Wine and sugar given to Mr. Poulett Ss 4d 



Horse-hire, for the sergeant to ride to 
Mr. Walrond, of Bovey, and for a 
loaf of sugar, and for conserves 
given there to Mr. Poppel....i)l Is Od 

Wine and sugar given to Judge An- 
derson 38 4d 

A bottle and sugar given to Mr. 
Gibbs £3 3b Od 

The value of money in the sixteenth cen- 
tury is so different from the present, that it is 
difficult to make a comparison of the fees of 
that period with the present. Sir Thomas 
More, in the reign of Henry VIIL, " gained, 
without grief, not so little as £400 by the 
year." Lord Campbell regards this as "an 
income which, considering the relative profits 
of the bar, and the value of money, probably 
indicated as high a station as £10,000 a year 
at the present day. This is but relative, how- 
ever, and compares but poorly with Francis 
Bacon's income, which, when he was Attorney- 
General, not very many years after, amounted 
to £6000, and was a royal income for those 
times. Coke made a still larger income dur- 
ing his tenure of the same office, the fees and 
official practice amounting to no less a sum 
than £7000 a year.* These were very ex- 

* "The salary of Attorney-General," says Lord 
Campbell, in a note to the "Chief-Justices," was 
£81 68. 8d. ; bat his official emoluments amounted to 
£7,000 a year. His private practice, too, must have 
been rery profitable." It is extremely difficult to say 
to what sum of our present money this is equivalent. 
Coke was Attorney-General from 1694 to 1606. The 
importation of American gold begaft to afibot the 
value of silver in England in 1570, according to Adam 
Smith, and ceased in 1640. During this time, this 
value sank in the relation of one to four. The value 
of silver remained about the same until the present 
century, when a further decrease of fifty per cent, up 
to the present day may be predicated or it. Cokeys 
term of office occurring just in the middle of the 
period before mentioned, it may be &ir to take the 
average, and to consider it as worth double what it 
would have been worth in 1640, or £14,000. Add an 
increase of fifty per cent., and it becomes £21,000 as 
the actual et^uivfuent in money. But its comparative 
equivalent is &r larger. Macaulay, writing of the 
period of James II., nearly a century later, gives the 
income of the richest peer in England, the Duke of 
Ormond, as £22,000, and the avoraffe income of a peer 
as £8.000. "A thousand a year,"' he says, "was 
thought a large revenue for a barrister. £2,d00 a year 
was nardly to be made in the King's Bench, except 
by the Crown lawyers. It is evident, therefore, that 
an official man would have been well paid if he had 
received a fourth or fifth part of what would now be 
an adequate stipend." (History of Enffland, vol. 1, 
c. III.) Further on (vol. lY.), berates ^,000 so late 
as the time of William III, at " more than £800,000 
in our time when compared with the value of estates." 
To double Coke's income, even with the fifty per cent 
already added, cannot therefore be excessive, in 
order to arrive at its relative value. This makes it 
£42,000 in our currency of to-day. This was, it will 
be remembered, exclusive of his private practice, and 
yet is to be regarded as an extremely moderate esti- 
mate. 



112 



THE CANADA LAW JOCJRNAL. 



[November, 186T- 



traordinarj incomes ; for, in the reign of 
Charles 11., Somers was thought a fortunate 
and rising man, and made £700. Pepys, as 
usual, gives some valuable information. Being 
about to go before the House of Commons to 
argue an Admiralty cause, he records, " To 
comfort myself, did go to the ' Dog* and drink 
half a pint of mulled sack, and in the hall 
did drink a dram of brandy at Mrs. Hewlett's ; 
and with the warmth of this did find myself 
in better order as to courage, truly." He ac- 
quitted himself so well with this Dutch cou- 
rage, that a '^ gentleman said I could not get 
less than £1000 a year, if I would put on a 
gown and plead at the Chancery bar." These 
incomes, though good, were not the highest ] 
for there is preserved a fee-book of Sir Francis 
Winnington, showing that in 1673 he received 
£3,371 J in 1674, £3.560 j and in 1675, when 
he was Solicitor-General, £4,066. Roger 
North records of his brother Francis (after- 
wards Lord-Keeper Guildford), that his income 
when Attorney-General was £7000. Doubt- 
less these enormous incomes were not gained 
by the chief law-officers of the Stuarts without 
the doing of much dirty work. The lawyers 
of this period were wont to keep the money 
paid them in their skull-caps; and Roger 
North says of his brother, " His skull-caps, 
which he wore when he had leisure to observe 
his constitution, as I touched before, were 
now destined to lie in a drawer to receive the 
money that came in by fees. One had the 
gold, another the crowns and half erowns, and 
another the smaller money." It appears, 
too, from "Hudibras," that this money was 
sometimes kept for show on the table : — 

<' To this brave man the knight repairs 
For counsel in his law affairs, 
And found him mounted in a pew, 
With books and money placed for show, 
Like nest-eggs, to make clients lay, 
And for his false opinion pay." 

Pemberton's fee for defending the •' Seven 
Bishops" shows that legitimate business at 
this time gave but slight rewards. His re- 
taining fee was five guineas ; he received 
twenty guineas with his brief, and three for 
a consultation. 

In the eighteenth century, Charles Yorke's 
(afterwards Lord Hardwicke) receipts afford 
an excellent example of the progress of a ris- 



ing lawyer. They were, for the first year's 
practice, £121 : second, £201 ; third and 
fourth, between £300 and £400 per annum ; 
fifth, £700; sixth, £800; seventh, £1000; 
ninth, £1600; tenth, £2,600. This gradually 
increased, until, during the last year of his 
tenure of the ofi^ce of Attorney-General, he 
received £7,322. Lord Eldon used to say 
about himself, that he agreed with his wife, 
on beginning practice, that what he got the 
first eleven months should be his, and what 
in the twelfth hers; and that for the first 
eleven months he made not one shilling, and 
in the twelfth half a guinea. Out of this 
"eighteenpence went for charity, and Bessy 
got nine shillings." Whether this was so, or 
merely told to make a good story, it appears 
from his. fee-book that, in 1786, ten years 
after he began practice, he made £6,833 78., 
and that in 1796 his receipts were £12,140 
15s 8d. 

It seems, from the extract from Dugdale 
already given, that one of William de Beau- 
champ's learned counsel was a judge. From 
this and other sources it appears that judges 
were not precluded in ancient times from giv- 
ing opinions to, and taking money from, pri- 
vate clients ; though they were forbidden to 
take gold or silver from any person having 
'* plea or process hanging before them." In- 
deed, down to the time of James I., and some- 
what later, the salaries paid to judges were 
merely retaining fees, and their chief remu- 
neration consisted of a large number of 
smaller fees. They were forbidden to accept 
presents from actual suitors, but no suitor 
could obtain a hearing from any one of them 
until he had paid into Court certain fees, of 
which the fattest was a sum of money for the 
judge's personal use. 

That the salaries of the judges in the time 
of Elizabeth were small, in comparison with 
the sums which they received as presents 
and fees, may be seen from the Table of 
Judges* Allowance, of which the following is 
an extract: — 

THE LORD CHEEFE JUSTICE OF ENGLAND. 

£ S. d. 

Fee, Reward, and Robes 208 6 8 

Wyne, 2 tunnes at £5 . 10 
Allowance for beingjus- 

tice of assize . 20 8 



November, 1867.] 



THE CANADA LAW JOURNAL. 



11$ 



It is unnecessary to say that this system 
ofpresents^ countenanced and practised even 
by Queen Elizabeth, gave occasion to great 
corruption. In it is concerned the whole 
question of the bribery of Lord Bacon, on 
which it would be useless here to enter. The 
very handsome salaries, as well as retiring 
pensions, paid to judicial officers in England, 
has long since put a stop to this system.* 

In a review of the ancient chronicles of 
England, it is apparent that the law univer- 
sity was a much more conspicuous feature of 
London than it has been in more modern 
generations, and that its members exercised 
a much greater influence than at present, — 
circumstances which render its history not 
only more interesting, but important. " To 
appreciate," says Mr. Jeaffreson, <4he great 
influence of the law university in the fifteenth 
and sixteenth centuries, it must be borne in 
mind that the gownsmen (judges, sergeants, 
ancients, readers, apprentices, and students 
being comprised in this term) maintained to 
the townsmen almost as large a proportion as 
the gownsmen of Oxford or Cambridge main- 
tain at the present time to the townsmen of 
those learned places." All that the " sea- 
son" is to modern London the "term" was 
to old London, from the accession of Henry 
Vlll. to the death of George H. ; and many 
of the existing commercial and fashionable 
arrangements of a London '^ season" may be 
traced to the old word "term." Besides 
those students who went to the Inns to study, 
there were a large number who merely lived 
there for the sake of the position and conve- 
nience it gave them for enjoying the pleasures 
of the metropolis. In the fifteenth century 
the students numbered two thousand. In 
Elizabeth's time the number fluctuat- 
ed between one and two thousand. In 
Charles II. 's reign, there were about fifteen 



Annual An. Pension 
Salary, on retirement. 



* Lord Chancellor of England 
Lord CbiefJostiGe of Queen's 

Bench 
Lord Chief-Justioe of Com- 
mon Pleas 
Master of the Bolls . 
Lords Justices (each) . 
Yloe-Chancellor of England 
Chief Boron of the Exchequer 
Bach Puisne Judge or Baron 



£10,000 


£6,000 


8,000 


8,760 


7,000 

e,ooo 

6,000 
5,000 
7,000 
6,000 


8,750 
8,750 
8,760 
8,600 
8,760 
8,600 



hundred. Many of these young men were 
among the gayest gallants of their periods* 
Under the Court, they set the fkshion in 
dress, slang, amusement, and vice. They 
performed plays and masques, or were critics 
of the plays acted upon the stage ; and no 
actor could achieve popularity if the students 
of the Temple or the Inns conspired to laugh 
him down. Mr Jeafireson relates with much 
gusto the pomps and processions, the masques, 
amateur theatricals, the jests, the drinking 
bouts and revels, in which these young men 
took part under the Stuarts. We shake our 
heads, in these sober days of the nineteenth 
century, at such routs ; but it was an age of 
debauchery, and even the veterans of the 
bar exceeded the limits of strict propriety. 
Chief Justice Saunders was a hard drinker, 
taking nips of brandy (so says Roger North)^ 
with his break^t, and seldom appearing in 
public " without a pot of ale at his nose, or 
near him," which was even served in Court. 
Evelyn tells how, at Mrs. Castle's wedding, 
"Sir George Jeffreys, newly made Lord 
Chief Justice of England, with Mr. Justice 
Withings, danced with the bride, and were 
exceeding merry." "Where," asked Lord 
Chief Justice Holt (if the story is true) of a 
criminal just sentenced to death for horse- 
stealing, whom he recognized as a boon-com- 
panion in the days of his hot youth — " where 
are all our friends of the DeviVs Tavern ?" 
"Ah, my Lord I" said the man, "they are 
all hanged but myself and your lordship." 
It is to be remembered, that in those times 
are to be found the foulest blots on the ad- 
ministration of justice which our common law 
has ever known. Much later than this, that 
sound old port wine, which used to be the 
pride of Britain, caused other high legal 
functionaries to perform curious f^aks. 
"Returning," says Sir Nathaniel Wraxall, 
"by way of frolic, very late at night, on 
horseback, to Wimbledon from Addiscombe, 
the seat of Mr. Jenkinson, near Croydon, 
where the party dined. Lord Thurlow, the 
Chancellor, Pitt, and Dundas found the 
turnpike gate, situated -between Tooting and 
Streatham, thrown open. Being elevated 
above their usual prudence, and having na 
servant near them, they passed through the^ 



114 



THE CANADA LAW JOURNAL. 



[November, 1867. 



gate at a brisk pace, without stopping to pay 
the loll, regardless of the remonstrances and 
threats of the turnpikeman, who, running 
after them, and believing them some highway- 
men who had recently committed some de- 
predations on the road, discharged the con- 
tents of his blunderbuss at their backs. Hap- 
pily, he did no injury." Lord Eldon was a 
great lover of port wine. He and his brother 
William, afterwards Lord Stowell, used to 
dine together, on the first day of each term, 
in a tavern near the Temple. Mr. Jeaffteson 
tells a story of Lord Stowell' s recalling, when 
an old man, these terminal dinners to his son- 
in-law, Lord Sidmouth. The latter observed, 
''You drank some wine together, I dare 
say?!'* Lord Stowell, modestly: "Yes, we 
drank some wine.'' Son-in-law, inquisitively : 
-" Two bottles ?" Lord Stowell, quickly put- 
ting away the imputation of such abstemious- 
ness, "More than that." Son-in-law, smil- 
ing, "What! three bottles?" Lord Stowell, 
" More." Son-in-law, opening his eyes with 
astonishment, "By Jove, Sir, you don't 
mean to say that you took four bottles ?" 
Lord Stowell, beginniDg to feel ashamed of 
himself: " More ; I mean to say we had more. 
Now don't ask any more questions." 

The following amusing tale of virtuous in- 
dignation may in this connection be repeated. 
Alexander Wedderburn's (Lord Loughbor- 
ough) forte was never virtue. Though not a 
noted gambler, he was a constant frequenter 
of Brookes' s and White's, and was well 
known to the world to be versed in all the 
mysteries of gambling and dicing. Sitting 
one day at nisi priuSj he exclaimed with 
^eat warmth, "Do not swear the jury in 
this cause, but let it be struck out of the 
paper. I will not try it. The administration 
of justice is insulted by the proposal that I 
should try it. To my astonishment, I find 
ihe action is brought on a wager as to the 
mode of playing an illegal, disreputable, and 
mischievous game called 'hazard' — whe- 
ther, allowing seven to be the main and 
eleven to be the nick to seven, there are more 
ways than six of nicking seven on the dice? 
•Courts of justice are constituted to try rights 
^nd to redress injuries, not to solve the pro- 
.blems of gamesters. . The gentlemen of the 



jury and I may have heard of ' hazard' as a 
mode of dicing by which sharpers win and 
young men of &mily and fortune are ruined ; 
but what do any of us know of * ' seven being 
the main," or "eleven the nick to seven?" 
Do we come here to be instructed in this lore 7 
and are the unusual crowds (drawn hither, I 
suppose, by the novelty of the unexpected 
entertainment) to take a lesson with us in 
these unholy mysteries, which they are to 
practise in the evening in the low gaming 
houses in St James street — ^pithily called by a 
name which should inspire a salutary terror 
of entering them ? Again, I say, let the cause 
be struck out of the paper. Move the Court, 
if you please, that it may be restored; and if 
my brethren think I do wrong in the course 
I now take, I hope that one of them will offi- 
ciate for me here, and save me from the 
degradation of trying 'whether there be 
more than six ways of nicking seven on the 
dice, allowing seven to be the main, and ele- 
ven to be a nick to seven,' — a question, after 
ally admitting of no doubt, and capable of 
mathematical demonstration,^^ 

Speaking of cards, the eminent puisne 
Judge, Mr. Justice Buller, although he did 
not entertain progressive ideas on the law of 
libel, and gave evidence of former good char- 
acter a curious turn against prisoners, was 
certainly right in his view of whist, that best 
of all games for a lawyer ; for he used to say 
that his idea of heaven was to sit at nisiprius 
all day, and play whist all night. Had he 
been living, he would have appreciated an 
excellent repartee of Lord Chelmsford's. As 
Frederick Thesiger, he was engaged in the 
conduct of a cause, and objected to the irre- 
gularity of the opposing counsel, who, in 
examining his witnesses, repeatedly put lead- 
ing questions. "I have a right," maintained 
the counsel doggedly, " to deal with my wit- 
nesses as I please." "To that I do not 
object," retorted Sir Frederick. " You may 
deal as you like, but you shan't lead. 

The subject of the non-professional culture 
possessed by lawyers presents an interesting 
study. In older times, a large proportion of 
the best students from universities entered, 
what was then pre-eminently the profes- 
sion of letters, — the Church. During the 



November, 1867.] 



THE CANADA LAW JOURNAL. 



115 



last fifty years, however, the bar has so far 
invaded on the province of the clergy, as to 
occasion no little alarm to the ecclesiastics. 
"The number of men," says Mr. Jeaffreson, 
" now upon the books of Lincoln's Inn, who 
have won the ' high honors ' of Oxford and 
Cambridge, is a suggestive fact." A list com- 
piled from the last volumes of Foss's '^ Judges 
of England," is given, containing eighty-two 
names of the most distinguished judges of the 
last three reigns, some of whom are still living. 
Of these, it is stated that thirty-two received 
no education at Oxford, Cambridge, Edinburgh 
or Dublin ] one was educated at Edinburgh, 
four belong to Dublin, eleven were trained at 
Oxford ; and thirty -four came from Cam- 
bridge, twenty-three of these being from a 
single college, — that of Trinity, Cambridge, 
which can fairly boast of being, above all 
others, the nursery of English lawyers. Of 
the lawyers thus educated, among thoRe who 
have taken very high honors, may be men- 
tioned Lord Tenterden, of Corpus Christi Col- 
lege, Oxford, winner of the only two honors 
then open to competition, — the Chancellor's 
Medals for Latin and English Composition ^ 
Lord Langdale, of Caius College, Cambridge, 
senior wrangler, and senior Smith's prizeman ; 
Sir J. Taylor Coleridge, Corpus Christi Col- 
lege, Oxford, first classman, winner of three 
Chancellor's prizes j Lord Lyndhurst, Fel- 
low of Trinity College, Cambridge, second 
wrangler, Smith's prizeman ] and Sir Edward 
Hall Alderson, Caius College, Cambridge, 
senior wrangle. Smith's prizeman, senior 
medalist. It was the latter whose classical 
ears were shocked, when Baron of the Ex- 
chequer, by the application of counsel for a 
nolle prosequi, " Stop, Sir," he said, " con- 
sider that this is the last day of the term, and 
don't make things unnecessarily long." A 
fellow story to this, of the late Lord Justice 
Knight Bruce, properly finds its place here. 
A barrister, lately called, who had been a dou- 
ble first classman at his university, was mak- 
ing a long and tedious argument before him, 
and quoted the maxim, '' Expressio unius est 
exclusio alteriaSj^^ giving the i in unius short. 
The Lord Justice, arousing himself from a 
sort of half slumber, said, " Unius, (i long) Mr. 
; uniiLs. We always pron'ounced it unius at 



school." — " Oh yes, my lord 1" replied Mr, 
— — J " but some of the poets make it short, 
fortne sake of the metre." — ^You forget, Mr. 

^," said the judge, " we axe prosing here." 

In an anecdote told of Lord Campbell, the 
advantage was on the side of the counsel. In 
an action brought to recover for damages done 
to a carriage, one of the counsel repeatedly cal- 
led the vehicle in question, a " broug-ham," 
pronouncing both syllables of the word broug- 
ham. Whereupon Lord Campbell, with consi- 
derable pomposity, observed, " Broom, is the 
more usual pronunciation : a carriage of the 
kind you mean is generally, and not incor- 
rectly, called a * broom.' That pronuncia- 
tion is open to no grave objection, and it has 
the great advantage of saving the time con- 
sumed by uttering an extra syllable." Half- 
an-hour later, in the same trial. Lord Camp- 
bell, alluding to a decision given in a similar 
action, said : "In that case, the carriage which 
had sustained injury was an omnibus — " — 
" Pardon me, my lord," interrupted the coun- 
sel, with such promptitude that his lordship 
was startled into silence j "a carriage of the 
kind to which you draw attention Jis usu- 
ally termed a buss. That pronunciation is 
open to no grave objection, and it has the 
great advantage of saving the time consumed 
by uttering two extra syllables." The icter- 
ruption was naturally followed by a roar of 
laughter, in which Lord Campbell joined 
more heartily than any one else. 

As an off*set to the nice ear of these judges,, 
the Latinity of Lord Kenyon may be noticed. 
* ' Modus in rebus j ' ' his lordship would remark 
if a trial was too long : " there must be an end 
of things." When a case of glaring fraud was 
brought before him, he exclaimed, The dishon- 
esty is manifest} in the words of an old Latin 
sage, apparently ' Latet anguis in TierhaJ' " — 
Again he said, with a face of great wisdom,^ 
'^ In advancing to a conclusion on this subject, 
I am resolved stare supra antiquas masJ^ 
Coleridge, in his " Table Talk," is authori- 
ty for the story that, in a trial for blasphemy, 
he said to the jury, "Above all, gentlemen, 
need I name to you the Emperor Julian who- 
was so celebrated for the practice of every 
Christian virtue, that he was called Julian 
the AposiUJ^ His knowledge of the poets wa» 



116 



THE CANADA LAW JOURNAL. 



[November, 1867. 



^certainly peculiar. " The allegation,'' he 
once exclaimed indignantly daring the exa- 
mination of an unsatisfactory witness, '^ is as 
far from truth, as old Booterium from the 
Northern Main, — ^a line I have heard or met 
with, God knows to^e;" and there is some- 
thing unspeakably funny in the metaphor ad- 
dressed by him to a prisoner convicted of steal- 
ing a large quantity of wine belonging to his 
employer, that '^ he had feathered his nest with 
his master's bottles,'' and in the magnificent 
bathos of this touching peroration : ^^ Prison- 
er at the bar, a bountiful Creator endowed you 
with a powerful frame, a comely appearance, 
and more than ordinary intelligence ; and 
through the care of your respectable parents 
you received at the outset of life, an excellent 
education } instead of which you home persisted 
in going about the country stealing ducks,^^ 

RECENT ENGLISH DECISIONS. 

Ship and Shipping — Charterparty — BUI of 
Lading — Liability ofOtoner of chartered Ship 
■^Principal and Agent — Master and Ship- 
owner — Carrier — Liability Jor stowage of 
Goods — Steved<yre, — A ship was chartered for 
a voyage from Oporto to the United Kingdom, 
to load from the factors of the affreighter a 
full cargo of wine or other merchandise, at 
ISs, per ton 5 the captain to sign bills of lading 
at any rate of freight without prejudice to the 
charter j the ship to be addressed to charter- 
er' s agent at Oporto on usual terms. The ship 
was accordingly consigned to the charterer's 
agents at Oporto, and was put up by them as 
a general ship, without any intimation that 
she was under charter } the plaintiff shipped 
some casks of wine, and received bills of lading 
in the common form signed by the master. — 
The wine was stowed by a stevedore appoin^ 
ed by the charterer's agents and paid by them, 
the money being ultimately repaid them by 
the master. The wine having leaked from im- 
proper stowage : — 

Held, that as the charter did not amount to 
s, demise of the ship, and the owners remained 
in possession by their servants, the master and 
x^rew, the shipper was entitled to look to the 
owners as responsible for the safe carriage of 
the wine : inasmuch as he had delivered it to 
ibe carried in the ship in ignorance that she was 



chartered, and had dealt with the master, 
who was still the owner's master, as clothed 
with the ordinary authority of a master to 
receive goods and give bills of lading by 
which his owners would be bound. 

Held, also, that the employment of the steve- 
dore made no difference, at all events as 
regarded the shipper, as he was no party to 
the employment, and had a right to look to 
the owners for the safe stowage of the 
goods, as part of the carrier's duty, in the ab* 
sence of any special agreement. — Sandeman 
V. Scurr.lAw Rep. 2 Q. B. 86. 

Principal and Agent — Foreign Market — 
Eadgeneies of Market — Order to purchase. 
Substantial compliance with-^Money paid. — 
The defendant, who resided in Liverpool, gave 
to the plaintiffs, who carried on business at 
Pernambuco, an order to purchase 100 bales 
of cotton of a specified quality, on the follow- 
ing terras : '^ I beg to confirm my letter of the 
23rd of February, and hope you will have ex- 
ecuted fully all the cotton ordered, and consider 
it still in force. If executed, please regard 
this as a new order for 100 more." The plain- 
tiffs acting on this order, purchased in the 
market, and paid for, ninety-four bales of the 
specified cotton. No direct evidence was 
given as to the then state of the Pernambuco 
market ', but the circumstances of the case ren- 
dered it reasonable to infer that the plaintiffs, 
in purchasing ninety-four bales, had done all 
that was practicable. The defendant declined 
to pay for these bales on the ground that his 
order had been inadequately performed: — 
Held, that the order must be construed with re- 
ference to the state of market for which it had 
been given, and that it had been substantially 
complied with. — Ireland v. Livingston, Law 
Rep. 2 Q. B. 99. 

Action — Staying Proceedings till Costs 
of former Action paid, — Where a plaintiff 
having failed in an action brings a second 
action for substantially the same cause, 
unless the plaintiff satisfy the Court that 
a real probable cause of action exists, the 
proceeding is so primd facie vexatious and 
harassing that the Court will stay the second 
action until the costs of the former action have 
been paid. — Cobbett v. Warner, Law Rep. 
2 Q. B. 108. 



November, 1867.] 



THE CANADA LAW JOURNAL. 



iir 



LAW JOURNAL REPORTS. 



COURT OF QUEEN»S BENCH. 

APPEAL SIDE. 

June 1,19,1867. 
THE QUEEN v. JOHN PAXTON. 
Reserved Case — ExtradUion Treaty — Forgery, 

A fugitive from Canada was surrendered 
to the United States authorities on a charge 
of forgery : that being one of the offences en- 
umerated in the Treaty. The prisoner was 
put on his trial and convicted on an indict- 
ment for feloniously uttering a forged promis- 
sory note for the payment of money. The 
case being reserved on an objection that the 
prisoner could not be tried for any offence but 
that for which he had been extradited : — 

Held : That the charge of forgery included 
the lesser charge, and conviction maintained. 

This was a case reserved from the Court of 
Queen's Bench, Crown side, by Drumfnumd^ 
/., under the following circumstances : — 

At the term of Queen's Bench, Crown Side, * 
on the 24th September, 1866, the prisoner, 
John Paxton, was indicted for feloniously ut- 
tering a forged promissory note for the pay- 
ment of money. On his arraignment, on the 
10th of October, a special plea was filed by 
his counsel, setting out that the prisoner had 
been extradited from the United States, for a 
different crime, viz : forgery, and that he could 
not be called upon to answer any other charge. 

To this plea there was a demurrer on the 
part of the Crown, the points urged being as 
follows : — 

1st. That the plea does not allege any mat- 
ter which by law constitutes any valid plea to 
the jurisdiction of the Court, or in abatement 
to the indictment, the offence charged being 
alleged to have been committed within the 
jurisdiction of the Court. 

2nd. That the matters alleged in the plea 
did not constitute any legal ground for not an- 
swering the indictment, but could only be ta- 
ken cognizance of by the Executive authority 
as involving a question of international policy. 

3id. That the crime charged against the 



prisoner was one of the offences included 
within the provisions of the Treaty. 

4th. That the plea omits to specify the par- 
ticular charge of forgery, and does not show 
affirmatively that the offence was not connect- 
ed with the promissory note, upon which the 
indictment was framed. 

5th. That the crime of forgery includes that 
of which the prisoner is accused. 

At the March term, 1867, the demurrer 
was maintained and the plea rejected, the 
question of law raised by it being reserved. 

The prisoner then pleaded not guilty, and 
the trial having proceeded, a verdict of ^ti^y 
was rendered. 

Sentence was deferred till the opinion of 
the Court had been obtained upon the points 
of law raised by the plea. 

Quebec, June 19, 1867. 

Judgment was rendered by Duval, C. J., 
Caron, Drummond, and Badglet, J J., main- 
taining the verdict. 

E, Carter^ Q. C, for the private prosecu- 
tion. 

B. Devlirif for the prisoner. 



June 8, 1867. 

MULLIN,AppELi^NT,and AlRCHAMBAULT,. 
Respondent. 

Practice — Motion for leave to appeal. 

An application was made on the last day of 
the Appeal term, for leave to appeal to the 
Privy Council from a judgment rendered five 
days previously: — 

Held, that the motion came too late. 

Mr, Doriony Q, C, counsel for the Appel- 
lant, moved for leave to appeal to the Privy 
Council from the judgment rendered June 3rd. 
{Ante, p. 90). 

Duval, C. J. I will hot receive your mo- 
tion on the last day of term. The case would 
thereby be locked up till September next, and 
the end attained. 

Mr, Dorion. Notice has been given. Time 
was required to communicate with our client 
before making this motion. 

Duval, C. J. The party should have been 
in Court when judgment was rendered. If we 
were to receive this application, we must re- 



118 



THE CANADA LAW JOURNAL. 



[November, 1867. 



celve all similar applications, and thus parties 
would obtain indirectly what they cannot ob- 
tain directly. Make your motion on the let 
September. We refuse a rule, because a rule 
would suspend proceedings in the meantime. 

Lafiammej Q. (7., pounsel for the Respond- 
ent, represented that delay would be especially 
prejudicial in this case, the action being one 
in ejectment: further, that the amount of 
rent in question did not admit of an appeal. 

Mr, Dorion. It is not a question of rent, 
but of damage caused to my client. 

DuYAL, G. «T. I entertain no doubt about 
it at all ) it is not a question of property, but 
a question of lease or no lease. 

Application rejected. 



June 8, 1867. 
Ex Parte FOURQUIN. 

Practice — Interdiction — Curator, 

Heldj that the curator to a person volun- 
tarily interdicted, must be brought into the 
proceedings to obtain contrainte for folle en- 
chh'e, though the folle encktre was made 
before interdiction. 

Fourquin, the prisoner, being detained in 
prison at Sorel, bis counsel applied in the first 
instance for a writ of habeas corpiut. The cir- 
cumstances set out in the petition were, that 
Fourquin had been subjected to contrainte for 
folle enchere. Subsequently to thefolle enchercj 
but before proceedings had been taken to ob- 
tain contrainte^ the prisoner was placed under 
voluntary interdiction, and one Parent was 
appointed his curator. In the proceedings 
taken to obtam contrainte the curator had 
not been brought in. 

An objection was raised that there was 
nothing to show that the prisoner had been 
interdicted. M. Girouard, counsel for the 
prisoner, contended that this was properly es- 
tablished by affidavit, and cited an English 
case in which the fact of the prisoner being a 
clergyman and exempt from imprisonment, 
had been established by affidavit in an appli- 
cation similar to this. 

Duval, C. J. The curator should have 
been brought into the case. The Court can- 
not grant a writ of habeas corptUf but the 
Judgment is that the writ of contrainte was 



illegally issued, and ordering that the prisoner 
be discharged, if there be nothing else against 
him. 

DauMMOin), Badolet, and Mondelet, JJ., 
concurred. 

2>. Girouardj for the Petitioner. 



June 4, 1867. 

MORMSON ET AL, Appellants j and DAM- 
BOURGES ET AL, Respondents. 

Praciice^Oopy of Writ of Appeal 

Heldj that the attorney for the appellant 
may certify the copy of a writ of appeal. 

A motion was made in this case, and also 
in two others, (Charlebois v, Bertrand, and 
Boucher etal, v, Duhaut,) that the appeal be 
dismissed, because the writ was not signed by 
the clerk of Appeals or his deputy, but was 
certified to be a true copy by the appellants' 
attorneys. 

Mondelet, J. The writ is properly signed, 
and the motion must be rejected. 

Badgley, J. The practice of attorneys in 
certifying copies of writs has received the 
sanction of the Court during the last half cen- 
tury, and cannot be now overturned. 

Aylwin, J. There are but nine days in which 
the business of this Court must be transacted. 
Of these, two are frequently Sundays, and 
another is sometimes a holyday, thus occa- 
sionally leaving only six days for business. — 
The Court should open at ten a.m., but it is 
more often eleven before business is fairly 
commenced, and the moment four o'clock 
comes, the judges leave. Besides all this, in 
accordance with some American custom, it is 
now decided that there shall be a recess, and 
thus another threeKjuarters of an hour is lost. 
Then again, the Court has now to dispose of 
reserved cases, and other Crown business, 
which has precedence over all other business, 
and usually occupies three or four days. — 
Yesterday, the motion in the present case, to 
grant which would be to overturn the invaria- 
ble practice during the forty years which have 
elapsed since I commenced my career, was 
argued during two whole hours, and the 
Court was treated to a luxe d"* erudition on a 
matter established beyond all question. How 



November, 1867.] 



THE CANADA LAW JOURNAL. 



119- 



under these ciroumstances is the business of 
the Court to be transacted ? I am prepared 
now to giye judgment in every case heard last 
term, not only here but at Quebec, but nothing 
is done. Under these circumstances, I have 
this day sent in my resignation, because I am 
satisfied that justice cannot be properly ad- 
ministered. 

Duval, C. J. The practice which we are 
now called upon to overturn, is one which has 
been followed for half a century, and has re- 
ceived the express sanction of all the judges 
during that period. The Court cannot now 
depart from that practice. The motion must 
be rejected. 

Lefrenaye & Armstrong, for the Appellants. 
PiclUj for the Respondents. 



MONTHLY NOTES. 



COURT OF QUEEN'S BENCH. 



APPEAL SIDE. 



June 8. 



DoRiov (defendant in the Court below) Appel- 
lant^ and DouTRE h qualiU (plaintiff in 
the Court below) Respondent. 

Surety — Signification of Transfer, 

This was an appeal from a judgment ren- 
dered by LorangeTj J., in the Superior Court 
on the 30th of September, 1864, and confirm- 
ed in the Court of Revision on the 22nd of Ja- 
nuary, 1865, by Smith and Berthelot, J J., 
(Monk, J., dissenting). 

The facts of the case were as follows : On 
the 18th of January, 1860, Anne Aur61ie Ron- 
tier, by F. E. Dorion, her husband and attor^ 
ney, made an obligation in favour of Pierre 
Doutre, advocate, for $360, payable in sixty 
monthly payments of $6 each, beginning from 
the 15th February, 1860, without interest, 
but in case three of said payments should not 
be paid at maturity, Pierre Doutre might de- 
mand the whole sum due. By the same deed, 
F. E. Donon ^s qualiii transferred to Pierre 
Doutre the sum of $400 as collateral security. 
This $400 was due by one Richard under a 
transfer made to Anne Aur^lie Rentier by A. 
A. Dorion on the 31st December, 1859. On 
the same day, by a writing sous sdngpriv^, 



the defendant, Y. P. W. Dorion, became se- 
curity of Anne A. Routier for the payment by 
Richard of the $400 transferred to Pierre Dou- 
tre. On the 23rd May, 1860, Richard settled 
with Anne A. Routier, instead of with the 
transferree. On the 8th of January, 1863, 
Mr. Joseph Doutre, the testamentary execu- 
tor of Pierre Doutre, brought the present ac- 
tion against Anne A. Routier and V. P. W. 
Dorion for $200, balance of the obligation of 
18th January, 1860. 

Anne Routier made default, but the appel- 
lant Dorion pleaded that he had not become 
security for the payment of the obligation sued 
on ; the only engagement contracted by him 
was that Richard would pay the sum of $400 
transferred to Pierre Doutre j that the latter 
having neglected to signify his transfer, Ri- 
chard had paid this sum to Anne A. Routier, 
on the 23rd May, 1860, and thus the appel- 
lant's suretyship terminated. The plaintiff 
answered that it was the duty of the appel- 
lant to signify the transfer. 

Judgment was rendered by Loranger, J., in 
the Circuit Court, on the 30th of September^ 
1864, maintaining the action against the sure- 
ty. The reasons assigned were that the ab- 
sence of signification of the transfer could not 
be invoked by V. P. W. Dorion. This judg- 
ment was confirmed by the Court of Revision 
on the 25ih January, 1865, MonJc, J., dissent- 
ing. The defendant Dorion appealed. 

Duval, C. J. The judgment must be re- 
versed. We are all decidedly of opinion that 
it was for the creditor to signify the transfer. 
It has been said that this woman, Anne Rou- 
tier, in receiving the money subsequently, has 
not done right. To this, it musf be answered 
that the caution has nothing to do with that. 
The considiranis of the judgment are : 

Consid^rant que feu Pierre Doutre, repre- 
sent^ par le demandeur en Cour de Circuit, a 
n^glig^ de faire signifier le transport fait au 
dit Pierre Doutre par Anne A. Routier, de ses 
droits, actions et hypoth^ues centre Richard } 
qu'en consequence de tel d^faut de significa- 
tion, le dit Pierre Doutre a, par sa faute et 
negligence, perdu son recours centre le dit Ri- 
chard, et s'est par li mis dans T impossibility 
de ceder ses droits et actions i Tappelant, Y.. 



I 



120 



THE CANADA LAW JOURNAL. 



[NovembeTy 1867. 



P. W. Dorion, qui est d^cbarg^ de sa respon- 
fiabilit^ comme caution , etc. 

Judgment reyersed and action dismissed. 

DbummonD; BiDOLET and Mondelet, J J., 
concurred. 

Dorion ds Doriony for the Appellant. 

Douire dk DaiUre, for the Respondent. 

Woodman et al., (defendants in the Court be- 
low) Appellants ; and Gekieb (plaintiif in 
the Court below) Respondent. 

Sheriff^ 8 Sctle — Last and highest bid. 

This was an appeal from a judgment ren. 
dered in the Superior Court at Beauharnois, by 
LarangeTf J., on the 28th of March, 1865. 
The facts of the case were these: On the 12th 
October, 1859, the plaintiff was the proprietor 
in possession of an immoveable in the District 
of Beauhamois. Hainault, one of the defend- 
ants, in his quality of Sheriff, took this im- 
moveable in execution. The sale took place 
on the 12th October, 1859, when the property 
was adjudged to Bard P. Paige and Henry 
Woodman, for £573. The plaintiff charged 
the Sheriff with having made a fraudulent 
sale, as several parties were present willing to 
bid more, but were not allowed an opportunity 
to do so. He accordingly brought an action 
and inscribed en favx against the return of 
the Sheriff and bailiff, with prayer that the 
sale be declared null, and the plaintiff be re- 
instated in possession. 

The defendants pleaded that the sale was 
regularly carried out. The most important 
evidence was given by one Cameron, who de- 
scribed the transaction thus : ''I followed by 
a bid of £10, and after that it continued by 
bids of £5 or less, until it reached the sum of 
£570. This last amount being my bid, I ask- 
•ed the bailiff again if the property was mine, 
but he did not give me any answer. There 
was a stay again, and the bailiff sat down on 
the platform ; then a gentleman whom I heard 
called Paige, said £3, and immediately I said 
£1. I gave my bidding £1, as quick as the 
£3 were out of Mr. Paige's mouth. The bai- 
liff told me that I was too late and refused 
my bid." 

The judgment of the Superior Court held 
that the bid of Cameron was in time, and 
should have been accepted, and that the sale 



was in consequence null. From this judg- 
ment the present appeal was instituted. 

Badolsy, J. This is an appeal from the 
Superior Court at Beauharnois. Woodman, 
one of the appellants, obtained judgment 
against Genier, and caused his real property 
to be seized under &Ji.fa. At the time of the 
sale, the bailiff employed received bids up to 
£570. Shortly afterward, Paige, one of the 
plaintiffs, bid £573, which was simultaneous- 
ly or almost simultaneously overbidden by Ca- 
meron, who bid £574. The bailiff refused to 
receive the last bid, and knocked down the 
property. Cameron was quite competent to 
pay his bid, and was within the allowed time. 
The last and highest bidder must be adjudged 
the purchaser, but the highest bidder cannot 
be ascertained till the close of the sale, and 
therefore there must be some formal intima- 
tion of that close. Under these circumstances 
the judgment of the Superior Court must be 
confirmed. 

Duval, C. J., Drummond and Mondelet, 
JJ., concurred. 

Ldflanc & Casstdyj for the Appellants. 

Douire & Doutre, for the Respondent. 

SUPERIOR COURT. 

October 5, 1867. 

Shannon et al. v. Wilson, et ah 

Practiee — Serment SuppUtoire, 

Monk, J. In this case a woman was sued 

as a widow upon an obligation. In the deed 

she declared herself to be a widow. Now 

when she was sued she came into Court and 

said that her husband was not dead. Another 

feature in the case was an intervention by the 

husband. The parties had joined issue upon 
the merits. The Court was of opinion^that the 
evidence to show that the husband was living 
was not conclusive. The Court would, there- 
fore, order him to come into Court for the 
serment suppUtoire, If he came into Court, and 
said he was not dead but living, the Court 
must dismiss the case. 

[On the 17th October, the husband appeared 
before the Court in person, whereupon the 
plaintiff's action was dismissed as against the 
wife, and judgment went only against the 
intervening party.] 

Kelly A Barionj for the Plaintiffs. 
C. P. Dandsonj for the Defendants. 
Perkins & Bamsay, for the Intervening 
party. 



December, 1867.J 



THE CANADA LAW JOURNAL. 



121 



^ht ^unHu i^anr journal. 

Vol. m. DECEMBER, 1867. No. 6. 

SQUATTERS. 

A case of great importance to proprietors 
of Eastern Townships lands will be foimd 
in the present issue. In Fllice v. Courte- 
mancTiey the Court of Appeal has decided 
that a person squatting upon unoccupied 
land, without a shadow of title, and clear- 
ing the land or building on it, ia entitled to 
demand the value of his improvements 
before he can be ejected. This decision 
would afford much cause for regret, did not 
one or two of the circimistances connected 
with the case render it one of peculiarity. 
The question is .one which does not re- 
quire much knowledge of law for its deci- 
sion. ^^ Am I to put my hand in my 
^* neighbor's pocket," said the Chief Jus- 
tice, << because he is a dishonest man ?" But 
put this in another way. Is (not my neighbor 
but) some parasitical interloper to take ad- 
vantage of my back being turned, to fasten 
upon my property, and then am I to be 
dragged into a troublesome litigation, and 
to be subjected to the annoyance and 
anxiety of an expertise, to determine in 
what sum I am to be mulcted for his volun- 
tary and unasked for services, and then if 
I cannot pay this sum with heavy costs 
added, am I lose my property altogether? 
Surely this would be a monstrous propo- 
sition. In the case of C&wrtemapnche, how- 
ever, as Mr. Justice Dkummond pointed out, 
there were peculiar circumstances. The 
plaintiff had an agent who should have 
notified him that his land had been tres- 
passed upon, but who, on the contraxy, 
allowed the defendant to pay the taxes 
year after year for three years, and no steps 
were taken till the value of the land had 
been more than quadrupled. 



store goods in bonded warehouses, and who 
can now do so without fear of a seizure for 
rent due by the lessee of the premises, so 
long as the storage has been paid. The 
owners of goods are in fact placed in some- 
what the same position as subtenants who 
have paid their rent to the party from 
whom they leased. No doubt of the pro- 
priety of the decision could arise, even if it 
were not fully borne out (as it is) by the 
authorities. 



THE COURT OF APPEALS. 
The December term of the Court of 
Appeals was characterized by unusual vigor 
on the part of the Chief and puisne 
Judges, and an unusual amount of business 
was dispatched. Thirty-five cases were 
taken en cUlib^rS, and the old d6Uh4r68 were 
disposed of. It is probable that some im- 
portant changes will, be made in the mem- 
bers of the Bench constituting this Court 
before the business of the March term is 
proceeded with. The Court has been ad- 
journed for judgments to the 28th February 
next. 



THE LANDLORD'S PRIVILEGE. 
The case of Eastty v. Fdbriquej reported 
in this number, is of much interest to com- 
mission merchants and others who have to 



FIVE AND T,WENTY YEARS AGO. 

We have been favored with the perusal of 
a pamphlet, printed in this city a quarter of a 
I century ago, containing the report of a com- 
mittee of the Montreal Bar on the state of the 
administration of justice. It is curious to 
observe that some of the evils complained of 
at the present day were in existence in 1842, 
and specially pointed out in the Report. One 
of these was the obstruction to business^ occa- 
sioned by the deficiency of judges in the Mon- 
treal District^ and the infirmities of one of the 
judges sitting on the Bench. The Committee 
also made a sore grievance of the interruptions 
of counsel by judges during argument. '' They 
'^ must enter their protest against the tone of 
<< petulance and choler, heretofore assumed by 
''apart of the judiciary ; and as a matter of 
''right they claim for the bar, both in cham' 
" bers and in court, entire immunity from of- 
"fensive language and demeanor." 

The charge of offensive behaviour on the 
bench is one which a judge possessed of tact 



122 



THE CANADA LAW JOURNAL. 



[December, 1867"- 



and good sense will easily escape. It is true 
that some of the judges of our day do occa- 
sionally appear to forget that, though they may 
assume the mien of an irate schoolmaster, 
members of the bar are not to be awed into 
silence like schoolboys. But upon the whole 
there is not much to be complained of on this 
head. 

Several of the suggestions of the Committee 
have since been carried out. One of these 
was that the judges should be held to record, 
in every judgment, the grounds of their deci- 
sion. Also the very proper recommendation to 
change the tenure of the judicial office, and 
substitute the words, '< during good conduct'' 
for '* during pleasure'' in the commission of 
the judges. 

Some of the evils pointed out have since 
disappeared, such as having bankruptcy com- 
missioners or judges practicing before the 
Courts; exorbitant fees paid to prothono- 
taries and criers, a joint shrievalty obstructing 
business, A;c. In connection with the office 
of sheriff, it may be worth while to remark 
that the Committee recommended '* that the 
<< office of sheriff in civil malterSf should be 
'* abolished, and that the duties of that office 
" should be performed by the prothonotaries ;" 
and '' that the functions of the sheriff should 
'' be confined to the criminal side of the Court, 
** and he should himself receive a fixed salary." 



SUPPLEMENTARY FACTUMS IN THE 
COURT OF APPEALS. 

A rule was laid down by the Court of 
Appeal during the rendering of judgments 
on the ninth of this month, of which it is 
important that the members of the bar 
should not be ignorant. The CmsF Justiob 
called the attention of the bar to the prac> 
tice of sending supplementary notes or 
factums to the judges during vacation, and 
observed that he took this opportunity to 
intimate, that unless the Court gave leave, 
during the term, to gentlemen to send in 
supplementary memoranda in vacation, 
they would not be received ; and, further, 
notice of such supplementary notes must, 
,in all cases, be given to the counsel on the 
other side. Mr. Bbthune, Q. C, inquired 



whether this would apply also to lists of 
authorities, and whether the fact that the 
opposite party had received notice should be 
shown by" his receipt of copy on the paper. 
The Chief Jvstioe replied, that this would 
be the more regular course. The rule would 
henceforward be that . all supplementary 
memoranda must bear the signature of the 
opposite party. ' 

Mr. JusTiOE Badgley added a few obser- 
vations respecting the time of sending in 
the supplementary notes. He said that fre- 
quently after the judges had gone through- 
the whole labour of the case, and had made 
up their minds, they were required at the 
last moment to go through a long list or 
new authorities, to the exclusion of other 
duties. If there were to be any supple- 
mentary notes, he said, let them be sent iixt 
immediately after the argument. 



THE PATENT LAWS. 

Some suggestions of importance to Inven- 
tors are put forth in a letter recently publish- 
ed by Messrs. Charles Legoe & Co. The fact 
is pointed out that all the nations of the world^ 
with the. exception of Canada, Nova Scotia, 
Prince Edward Island, Switzerland, Greece^ 
Turkey, China and Japan, grant letters pa- 
tent for inventions to foreigners on the same 
terms as to their own subjects. New Bruns- 
wick and Newfoundland, among the British 
Provinces, have thrown off their exclusiveness 
and admitted foreigners to equal rights with 
their own citizens. " By this arrangement,' ** 
says the letter before us, the inhabitants of 
these colonies, are permitted to obtain Patents 
in the United States, for the reduced fee or 
$35, in place of the discriminating fee of $500 
charged to the inhabitants of Canada, Nova 
Scotia, and Prince Edward Island, in returu 
for their exclusiveness in not permitting 
American citizens to obtain Letters Patent oo. 
any terms, even by the payment of an equally- 
large fee. The United States Patent Law is 
so framed, that as soon as we cease to discri- 
minate against their citizens in the granting 
of Patents in Canada, their fee at once drops 
from $500 to $35, without additional legis- 
lation." These facts are not very creditable 



December, 1867.] 



THE CANADA LAW JOURNAL. 



123 



to 118 as citizens of that great Dation which 
•our ' great men/ are so constantly reminding 
us we haye become. Even in a pecuniary 
point of view, it is evident that the field pres- 
ented by the American States to Canadian 
inventors is far more inviting than thiat 
offered by Canada to American inventors. 
^< A United States Patent granted to one of 
our clients," says the letter, " recently sold 
for $80,000 in gold, for the six New England 
States, and for $30,000 in greenbacks for each 
of several other States." It is recommended 
that articles patented under Patents issued to 
foreigners be kept on sale at a reasonable rate for 
eighteen months, otherwise the Patent to be- 
<5ome void, and that no patent continue longer 
than fourteen years. This period it is proposed 
to divide into three terms : the first, of three 
years, to require a payment to Government of 
^25, the second terra of four years, an addition- 
al payment of $50, and the final term of seven 
yearn $100. "All, or nearly all inventors," 
says Mr. Leoob, " can afford the first payment 
of $25, and three years will test the value of 
the invention — if it prove a good one, the next 
fee can easily be raised, and so on. If it prove 
of no great value, the Patent may be allowed 
to become void, by non-payment of next fee, 
and consequently be open to the public." It is 
further recommended that all original Patents, 
Already granted in each of the Provinces, >)e 
•extended over the Dominion, with or without 
the payment of an additional fee. These sug- 
gestions appear to be dictated by experience 
and knowledge of the subject, and are conse- 
quently worthy of the most careful considera- 
tion. 



NOTICES OF NEW PUBLICATIONS. 

Harper's Mao AZiNB. December.— A high- 
ly interesting article appears in the pre- 
sent number, respecting the nurseries on 
Bandall Island. These < Nurseries' are a 
Juvenile Department of the New York 
Almshouse, and afford a happy home and 
place of education for about a thousand 
children of all ages. The progressive and en- 
lightened spirit of the present century has 
not been slow to perceive how much easier 
and better it is to prevent crime and dis- 
ease than to punish the one or cure the 



other. The institutions on Randall's Is- 
land afford a most cheering illustration of 
the good effect of removing young vagrants 
from the filth and misery, the impure air, 
and impure associations of their haunts 
and homes, and educating both mind and 
body in a well chosen and well ordered re- 
treat, in a salubrious atmosphere, with 
abundance of wholesome food, and liberty 
to indulge in the natural games and sports 
of childhood. Not a few of the hundreds 
who every year go forth from Randall's Is- 
land, to enter upon an honest and indus- 
trious career, will have reason to look back 
with gratitude to the months or years spent 
in that retreat. 

Prooedure Ctvilb, Vol. 1. By G. Doittrb, 
B.C.L., Advocate, Secretary of the Bar, 
Province of Quebec. This is the most com- 
prehensive and convenient manual of Civil 
Procedure which has yet appeared. The 
Preface is by a learned gentleman from 
whose instructions most of the younger 
members of the profession have derived 
no small benefit, we refer to Professor 
Lafrbnaye, of McGHU University. The Pre- 
face ia followed by an Introduction in which 
Mr. DouTRB notices the various changes 
which have been introduced by the Code 
of Civil Procedure. * These notes will at 
once direct the attention of the practitioner 
to a number of points which should not es- 
cape his notice. The Report of the codifica- 
tion commissioners is then given, together 
with the Text of the Code, and authorities 
cited by the commissioners. The book also 
includes the Insolvent Act of 1864 and am- 
endments, together with the rules of practice 
of the various Courts. It is the intention 
of the editor, we believe, to issue a second 
volume which will include the Tariffs of 
Fees. In the meantime, the first volume is 
complete in itself, and is carefully indexed, 
the Alphabetical and Analytical Index alone 
extending over about one hundred and 
twenty pages. It is unnecessary to dwell 
further upon the merits of this work w!iich 
is executed with Mr. Doutre's usual care 
and accuracy. What we have stated shows 
that it is well adapted for general use as a 
vademecum. 



THE CANADA LAW JOURNAL. 



[December, 1867> 



SANRBUPTCY— ABSItiNMENTB— FBOTDJCES OF 



AND QUEBEC. 



Anulroiif, wiuum . . 
Atkinson ,V«nie< 

8*DburT, ClmrlM 

B«Ui.KobeTt 

Bedud, AngiuliD 



.. rowuBhlpof Oeacli 



Lh t Femberton... 



Cocker, U»r{[e 

ColiT^, WUJIam 

Dale, John 

I>«npl*t««,Pucb«l 

Davfaon. IDomu. 

DavT. Benjamin Cuming... 

Denner. Theepbllns P 

Dooilua, HsnrrJosepb 

Eklgu, Phllfp 

Edwinii, R 

Errilt, Kicbsrd WilUun 

Fin dl»y, Them H 

Flagler, John K 

Fle»k. Henry C. 
FlTD.DnDlef.... 
FoBTtH- - 
Qanflilei. 

tiilkM, (jeorge 

GlinioD, John Foster... 
Orl«r, Tbomag UcK«« . 
Gueitln, FisncDia Xtvi 

Bartm'ft Locklngton. 



Kergan.John D., fcCo.... 

Lalor.ThomM 

Langloia, Uon.. 

Lazfer, RicbBTd Uonaid . . 

Lundy, Jobn Slenart 

MaeartDer, Gearn 

UcBean, Arebibald 

KoCartbr, John A 

H oDonald, John 

KoGaffln, Jamea 

MeUiUtTiH, Jobn 

MoLangblin, James 



Poebles, Andrew 

rhippon, Robert 

Flllon, William Itankon. 
Fllober & So tu. Lather. . . 



Book, Rolwrt... 
■ WUIiam 

, it of Senftcal *"Wt3» 

Tance, Jamea John. . 

TMna, LonlsXt 

Walker, Jamea 

Wilkes, Jame* 

Workman, George. .. 



. jt. George de BeniTTUIt 

. , BonoberriUv. 

, . C*mpbellf)>r<l 



,. Petrolla. .. 
,. HoDTen... 
. Parto 



. . Ottawa , , . 

. . Townsbipi 

"l. Frasfoli dn Iao. . . 



Joseph Rogers 
"' B. Eobinso 



. . West Oxibrd.. . 



, . Town^p of ifartii Gower 



. LennoxrlUe . . 
.. UUlbrook 

.'. FlSmpsbiu'g.!'. 



aobUn 



T. Sauvageau, 
EA.Kunaob 
Thos. DeaoDD. 

rge Bleyenson 
. _ . Macnai:bt»B 
A. W.Bmltb.... 
John McDonald, 



obourg , . 



SanTageao. . 

FollooE 

OS. Saaniters. 
W. F. Flndlar. 
Tbomaa Clarkgoi 
J. McCrae 



. A. Uacnacbtan 



Tbos. Churohar. 
Tbos. Miller 

Robinson.' 
uClarkKin 

T. SanvBgean... 

rbomas Clarkaoi 

A. Eraser 

WilllMB Heron.. 



OueB^ 
JtontK 



uelpb . . . . 



Windsor. . . 
Belleville . . 



Uanlreal... 

Asbbnm ■ - ■ 
Btantfbrd. . 
LiDdsar.. , . 



December, 1867.] 



THE CANADA LAW JOURNAL. 



125 



APPOINTMENTS. 

Thomas Miller, Esq., of Berlin, Ont., 
Barrister-at-law, to be judge of the County 
-Courttfor the County of Kalton, in the room 
of Joseph Davis, Esq., deceased. (Gazetted, 
Nov. 30, 1867. ) 

Thos. McCord, Esq., Advocate, to be Law 
Olerk of the Legislature of the Province 
of Quebec. (Gazetted, Dec. 20, 1867.) 



> <•> » 



LAW JOURNAL REPORTS. 



COURT OF QUEEN'S BENCH. 



APPEAL SIDE. 



December 9th, 1867. 
EASTTY, (Opposant in Court below), Ap- 
TBLLANT ; and CURE ET MARGUILLIERS 
DE LA FABRIQUE DE MONTREAL, 
<Plaintiffs in Court below). Respondents. 

Landlord? s privilege — Bonded Warehouse — ^ 
Coutume de Paris, Art 161. 

Held, that goods of third parties, traders, 
stored ui a bonded Customs Warehouse, are 
not liable to seizure for rent due to the 
lessor by the lessee, under Art. 161 of the 
Custom of Paris. 

This was an appeal from a judgment ren- 
dered by Berihelot, J., in the Circuit Court, 
at Montreal, on the 28th June, 1866. The 
plaintiflEs in l^e Court below, now respon- 
dents, on the 14th June, 1865, issued exe- 
cution against one Curry for $192.65, due 
for rent, and under this execution ninety- 
three crates of crockery, belonging to Eastty, 
the opposant, were seized. He filed his 
opposition on the 23rd June following, 
claiming to have them withdrawn from 
seizure on the ground that they had been 
put into Curry's warehouse as a Bonded 
Customs Warehouse, for a certain price or 
rate per package, and that this rate had 
been duly paid before the issuing of the 
seizure. . The answer to the opposition set 
up that the goods were placed in the pre- 
mises pour garmr les lieux ; that the oppo- 
sant was not a sub-tenant, and therefore 
his property was subject to the landlord's 
privilege. At enquMe, the plaintiffs admit- 
ted that the premises were leased by de- 



fendant as a Bonded Warehouse for the 
temporary storage of goods in trcmsitu to 
premises of the owners; that the goods 
seized had been but a few days in the pre- 
mises, and the rent demanded, with the 
exception of a few days, had become due 
before the goods were placed there. Fur- 
ther, that the goods were placed there by 
the opposant simply for storage, and that 
the storage was fully paid at the time of 
the seizure. 

The opposition being dismissed by the 
Court below, the opposant appealed. 

Badoley, J. The question is one of land- 
lord's privilege upon warehoused goods. 
It is well established that the landlord's 
privilege does not extend to all things, 
otherwise tradiiig would be greatly inter- 
fered with. Whatever things are in the 
house in the way of trade are exempt. A 
common instance of these exceptions is an 
auctioneer who receives your property for 
sale, and who does not hold the goods for 
himself but for others. [His Honor referred 
to two decisions, one by Chief Justice Reid, 
and the second by Mr. Justice Pyke, by 
which oppositions claiming goods as exempt 
from seizure had been maintained]. These 
decisions were upon the ground of public 
convenience. I think the same principle 
applies to the goods claimed in this case. 
They were under the protection of the pub- 
lic Customs Law. The judgment, there- 
fore, should be reversed. 

Drummond, J., referred to the lease by 
which it appeared that the second story of 
the premises was intended to be used by 
the lessee as a bonded warehouse. It was 
held under the old French law that it was 
merely the meubles meublans to which the 
privilege of the landlord extended ; but 
afterwards it was held that it extended to 
all the things in the house which evidently 
did not belong to another person. But 
as to deposits and articles placed in a 
store or shop in the course of business 
by other persons, they were exempt. 
TroploTig says, '^'Lorsqu'il est notoire que 
les meubles n'appartiennent pas au loca- 
taire, lestribunaux doivent, d'aprds lescir- 
oonstances, et sans qu'il y ait signification 



126 



THE CANADA LAW JOURNAL. 



[December, 1867^ 



prealable, admettreque le privilege n'a pas 
^u lieu.*' Certainly no notification was 
required with respect to the property in the 
present instance, it being well known that 
it was property belonging to the public, 
temporarily deposited in the premises. A 
case has been cited from Jowr, du PdlaiSj 
SavaietU v. MoriseaUj which applies here. 
The consideranU of that judgment were : 
^< Attendu que le privilege s'etend sur tout 
ce qui gamit la maison ^ Attendu que ce 
droit de preference est fonde sur la pr6- 
somption que tous les objets sur lesquels 
il s'etend sont la propriete du locataire : 
qu'il suit de 14, que le privilege doit' cesser 
toutes les fois que le proprietaire a du 
savoir que son locataire n'avait aucun droit, 
soit par la suite de la connaissance que I'on 
lui en a donnS, soit par la nature m§me de 
r exploitation, &c., annulle,'' &c. I think 
therefore, that the goods in this case were 
exempt from seizure, and that the opposi- 
tion should have been maintained. 

Duval, C.J. At the time of the argu- 
ment I was prepared to reverse this judg- 
ment, because it would destroy the whole 
of the bonded warehouse system. It is a 
privilege granted to the mercantile com- 
munity, aud it would be utterly unavailing 
if parties were to be told that their goods 
would be liable for the whole rent due. I 
concur in reversing the judgment. 

Caron, J., concurred. 

Judgment: Considering that the pre- 
mises in which lay the goods seized in this 
cause were leased by the respondents for 
the purpose of being used, and were in fact 
at the time of the seizure used as a bonded 
warehouse established by law for the tem- 
porary storage of goods belonging to mer- 
chant and trader indiscriminately, and were 
not by the terms of the lease destined to be 
exclusively furnished with moveables be- 
longing to the lessee : considering that the 
goods so seized belonged to the appellant, 
a trader in the city of Montreal, who had 
deposited them there for temporary stor- 
age a few days before the seizure thereof, 
and that they were so seized for rent, tlie 
greater part of which had become due be- 
fore they had been so deposited : consider- 



ing that the privilege granted to the pro- 
prietor by the 161st article of the Coutume 
de Paris over moveables found in the pre- 
mises leased by him is founded on the pre- 
sumption that such moveables are the pro- 
perty of the lessee : considering that such 
privilege does not extend to such goods as 
the proprietor must have known not to be- 
long to the lessee: considering, therefore^ 
that the said privilege did not extend to- 
the goods seized in this cause, &c. Judg- 
ment reversed. 

A. ds W, Robertson, for the appellant. 
JeiU ds ArchambauUj for the respondents. 

Dec. 9, 1867. 

ELLICE, (plamtiff in the Court below> 
Appellant J and COURTEMANCHE, (de- 
fendant in the Court below) Respondent. 

Squatters Act — C.S.L.C, cap ^b — Improve- 
ments — Civil Code, Art. 417. 

The defendant squatted upon land of an 
absentee (who was represented, however, 
by an agent), cleared and improved the 
land and paid the taxes for three years : — 

Held, in an action under C.S.L.C. Cap. 
45, that the defendant was entitled to the 
value of his improvements, less the esti- 
mated value of the rents, issues and profits 
during his occupation. 

This was an appeal from a judgment ren- 
dered by STiort, /., in the Circuit (]k)urt for 
the district of St. Francis, on the 15th of 
December, 1866. The action was instituted 
under C. S. L. C. Cap. 45, commonly called 
" the Squatter's Act, ' ' to recover possession 
of the south one-third of Lot. No. 13, in 
the 9th range of Clifton. The defendant 
admitted that the plaintiff was the proprie- 
tor, but urged that he, the defendant, had 
had peaceful possession from the 14th of 
February, 1860, during which time he had 
made considerable improvements, and had 
paid the municipal taxes, to the knowledge 
of the plaintiff, and he claimed to be paid 
the value of the improvements. 

The Court below, avantfaire droit, order- 
ed an expertise to estimate the value of the- 
improvements, and rents, issues and profits; 
and the experts reported the value of the- 
improvements at |350, and the rents, issues 
and profits at $50. The report was homo- 



December, 1867. J 



THE CANADA LAW JOURNAL. 



12T 



legated, and judgment was rendered award- 
ing to the defendant |300, with costs of 
the contestation. It was from this judg- 
ment the plaintiff appealed, submitting 
that the defendant, possessing in bad faith, 
could not recover from the proprietor com- 
pensation for improvements made by him 
iinasked. 

Badolby, J. Although I concur with 
my colleagues, my judgment is upon a dif- 
ferent ground. I look upon the question 
of good or bad faith on the part of the de- 
fendant as immaterial here, because in 
either case, I think the judgment should 
be confirmed. It is a petitory action under 
the Squatters* Act, Cap. 45 C. S. L. C. The 
substance of the evidence is to the follow- 
ing effect : that EUice owned a number of 
lots in the township, which were entered 
in the books of the municipality as his 
land. The taxes were paid by the defen- 
dant for three or four years. The present 
action was brought in 1864. The defen- 
dant had squatted upon this land without 
obtaining permission from any one ; he set 
to work, ditched, and erected buildings 
upon it for his own convenience, but in fact 
•casting upon the owner all the expense. 
The result after hia six years occupancy is 
shown by the $300 awarded to him. The 
question is whether squatters have the 
right to act thus, and then demand the va- 
lue of their improvements. If so, the only 
way to prevent it would be to warn them 
off, otherwise, the pockets of the owners 
would be depleted without their consent. 
In this case, Ellice, the landlord, was wdU 
known throughout that part of the coun- 
try. Every possible facility existed for as- 
certaining the name of the owner ; and in 
fact the defendant knew both one and the 
other, because he alleges in his plea that 
he paid the road and school taxes upon 
the land, which he could not have done un- 
less he knew the lot on which he paid. 
From all this evidence, it is clear to my 
mind, that the defendant was in bad faith. 
The plaintiff has urged that the bad faith 
of the defendant is a bar to his demand, 
and has referred to the 41 7th article of our 
Oode as having finally settled the law upon 



this subject. The objection of bad faith is 
not one to be proved by the land owner ; 
the orma would be cast upon the occupant 
to prove his good faith. The defendant 
has not proved good faith, his evidence is 
almost exclusively upon the value of the 
improvements, and that he paid the taxes, 
which he would do for his own advantage. 
I have no hesitation in stating my convic- 
tion that he was a squatter to whom the 
Squatters' Act applies, and that Act was 
passed for the very purpose of obtaining 
possession of lands squatted upon in this 
way J further, I am convinced that he was 
in bad faith. The 41 7th article of the Code 
contains no explanation or definition of the 
meaning of the terms good or bad faith ; 
this must, therefore, be sought in the com- 
mon law. Assuming that the defendant 
was in bad faith, does the 417th article ap- 
ply? The 41 6th article provides that the 
land owner who has constructed buildings 
with materials which do not belong to him 
must pay their value, but the owner of the 
materials has no right to take them away. 
The 417th article provides that when im- 
provements have been made by a possessor 
with his own materials, the right of the 
proprietor to such improvements depends 
on their nature, and the good or bad* faith 
of such possessor. The second clause says, 
that if the improvements were necessary, 
the proprietor of the land cannot have them 
taken away; he must, in all cases, pay 
Vhat they cost, even when they no longer 
exist ; saving, in the case of bad faith, the 
compensation of rents, issues and profits. 
The provisions of this article apply only to 
constructive improvements, and not to any 
other class of improvements whereby the 
land has been increased in value. Improve- 
ments which cannot be removed must be 
valued, and paid for by the land owner. 
The experts in this case made tHeir report 
with great care, and I think the judgment 
was right and should be confirmed. 

Cabon, J., after stating the facts, said he 
did not think the defendant was in such 
bad faith as to be subjected to the provi- 
sions of the last paragraph of the 41 7th ar- 
ticle. 



128 



THE CANADA LAW JOURNAL. 



[December, 1867^ 



Dttval, C. J. A great deal has been said 
about good and bad faith. It is a rule that 
he who talks about bad faith on the part 
of his adversary should show good faith 
himself. Now, the plaintiff has not shown 
bad faith, but he is answerable for the ac- 
tions of his agent. The defendant occupied 
this land in broad day and paid the taxes 
upon it for several years. The plaintiff's 
agent allowed the land to be improved and 
increased in value, and when he brings it 
into the market, he will get the increased 
price for it. Under these circumstances, 
should it be said that, because the defen- 
dant is in bad faith, the plaintiff should be 
allowed to put this money in his pocket ? 
What was the agent doing all this time ? 
The Roman law says that even in the case 
of bad faith, those expenses which really 
increased the value of. the land, must be 
re-imbursed. Is this not a principle of 
equity ? Am I to put my hand in my neigh- 
bor's pocket because he is a dishonest 
man ? The plaintiff himself was not on the 
spot, but he is liable for the acts of his 
agent. If he does not choose to attend to 
his own interests, he has only himself to 
blame if he suffers loss. 

Drummond, J. What led me ^ come to 
the decision I have arrived at, and to feel 
sure that I was not committing an act of 
injustice, was the fact that for four or five 
years, the defendant was allowed to pay 
taxes on this land. Now, no more convin- 
cing proof that he was there with the con- 
sent of the proprietor could be given. 
Whether the plaintiff was absent or not, he 
was bound to know what were his duties in 
the municipality. It is true that some taxes 
were paid by Ellice, but the defendant had 
been paying the taxes for several years, and 
the mere fact of the defendant having paid 
the taxes is full proof to my mind that he 
was there with the knowledge and consent 
of the proprietor. There are many persons 
who hold back, and let squatters pay the 
taxes till the value of the property has been 
doubled or trebled. At the same time I 
should be sorry if this case should be con- 
founded with the other case in which the 
land is taken possession of without the 



knowledge or consent of the proprietor. 
Judgment confirmed. 
Sanborn and Brooks, for the Appellant. 
H. (7. Cabana, for the Respondent. 



November 28th, 1867. 

WIGGINg V. THE QUEEN INSURANCE 

COMPANY. 

Insvranee — Making Claim in due form. 

One of the conditions in a policy of fire in- 
surance required that the claim should be 
made in due form. The plaintiff having suedoa 
the policy to recover for loss by an accidental 
fire, the jury, in answer to special questions, 
found that the plaintiff had made his claim 
without fraud or false representation, but not 
in due form : — 

Held, that the words but not in due form 
could not be treated as surplusage, and that 
the defendants were consequently, by law, 
entitled to judgment in their favor. 

Bbrthelot, J. The plaintiff sues for $1000, 
on a policy of insurance dated 21st June, 1866, 
for loss by an accidental fire in his house ou 
the 29th of November, 1866, which destroyed 
effects to the value of $1272. The plaintiff 
states that he put in his claim, accompanied 
by a statement under oath, of the amount of 
his loss as soon as possible after the fire, and 
that he was prepared to prove the amount by 
documents and papers or otherwise, according 
as the Board of Directors of the Company 
might reasonably require; and that within 
three months subsequent to the fire, he claim- 
ed from the Company the sum of $1000, the 
amount of his insurance, and that he has ob- 
served all the conditions of the policy. 

*The defendants by their pleas have invoked 
the 12th condition of the policy by which the 
insured was bound, within fourteen days sub- 
sequent to the loss by fire, to present a detail- 
ed statement of his loss duly sworn, or sup- 
ported by proof, in such manner as the Com - 
pany or their agents might require, and that 
if there was any fraud in the plaintiff's claim, 
he would lose the benefit of his policy. The 
defendants conclude by averring that the plain- 
tiff had failed to satisfy the requirements of 
the 12th clause within 14 days after his loss ; 
and that there was fraud according to the 12th 
condition, the plaintiff having claimed for 
effects not totally destroyed, and that he was 



December, 1867.] 



THE CANADA LAW JOURNAL. 



129 



guilty of fraud which precluded him from re- 
covering on his policy. 

The case was submitted to a jury on a sug- 
gestion of facts. The questions that require 
attention are the 8th, 9th and 10th, which are 
in the following terms : — 

8th. Did plaintiff forthwith, and within the 
delay required by said policy, to wit, the 12th 
of December, 1866, at Montreal, give notice 
to defendants, and deliver an accoui^t, giving 
particulars of the loss, under oath, and offer 
all information to defendants, and make claim 
to the payment of the Sum of $1000 of and 
from defendants ? — Answer. We consider the 
claim made, but not in due form, 

9th. Did the plaintiff, by his claim in writing, 
claim from the defendants the sum of $1000, 
and was and is there fraud in said claim ? '- 
Answer. He did make his claim, and we 
consider there was no fraud. 

10th. Was there a false statement in said 
claim ? — ^Answer. We think not. 

These three answers may be summed up 
as follows : The plaintiffdid not commit fraud 
nor produce a false statement, but did not 
make his claim in conformity to the require- 
ments of the condition of his policy. By their 
answer to the 7th question, the jury, or rather 
nine of them, replied that the loss sustained 
by the plaintiff was $900. The difficulty of 
reconciling these answers arises from the fact 
of the verdict not being general. The ques- 
tion which is usually the last, namely, '^ Do 
you find for the plaintiff or the defendant,'' 
was not put to the jury in this case. Two 
motions have been made on the part of the 
plaintiff, one that the words in the 8t1;i an- 
swer " but not in due form," be struck out, 
as useless, and having no bearing on the con- 
testation, contrary to evidence, and illegal, and 
a second motion for judgment for $900 on the 
verdict. On the part of the defendants three 
motions have been made ] 1st, for a new trial ; 
2nd, in arrest of judgment j 3rd, for judg- 
ment in their favor, because the answers of 
the jury do not sustain the allegations of the 
declaration, and do sustain the allegations of 
the defendant's plea. 

It is clear that the plaintiff's first motion 
cannot be granted, the jury having a perfect 
right to restrict the first portion of their an- 



swer by adding the clause in question. A sim- 
ilar motion was rejected in the case of dark 
V. Mtts. When the suggestions of facts have 
once been settled, and submitted to the jury, 
they must have full effect. If the judgment 
of the 26th June, 1867, which determined the 
suggestion of facts, was erroneous in leaving 
it to the jury to say whether the claim was 
made in due form, the plaintiff should have 
complained of that judgment. It was, per- 
haps, a mixed question of fact and law which 
might have been reserved by the Court j but 
this was not done, and the parties djd not com. 
plain. As I remarked in the case of Racine v. 
The Equitable Insurance Company j to what 
end was this question submitted to the jury if 
their answer is to be disregarded by the Court ? 
It is, perhaps, an inconvenience of the system 
of suggestions of facts, that in all cases the jury 
are not asked lastly in favor of whom tbey 
find. The plaintiff's first motion must there- 
fore be rejected, and for the same, or nearly 
the same reasons, the first two motions of the 
defendants cannot ^be granted. It is impossi- 
ble to pretend that the evidence was insuffi- 
cient, or illegal : on the contrary, it was suf- 
ficiently voluminous and contradictory on 
both sides, to permit the jury to decide the 
pretensions of the parties in one way or the 
other ', and in fact we see that one of them 
wished to give $1000, two of them $800,— 
whilst nine fixed the loss at $900. Nor is it 
a case in which a new trial can be granted, for 
independently of the oral evidence, we have in 
the record the report made by the two expertSj 
named by the parties the day after the fire to 
ascertain the amount of the loss, so that the 
jury on the proof made could have no difficul- 
ty in deciding on the judgment they should 
render and the amount of that judgment. Be- 
sides the jury found that there was neither 
fraud nor falsehood in the statements presented 
by the plaintiff. 

These two motions being also rejected, the 
Court comes to the consideration of the second 
motion of the plaintiff, and the third motion 
of the defendants. The plaintiff' pretends that 
the motion of the defendants is presented too 
late, but this pretension is unfounded. The 
defendants, contending that from the answers 
of the jury to the suggestion of facts— it result^ 



130 



THE CANADA LAW JOURNAL. 



[December, 4867. 



ed that judgmeDt should be given in their fa- 
vor — ^were at liberty to present the motion in 
question on the 26th of September, the 8am.e 
day that the plaintiff presented his to the same 
effect. Both parties have in this respect the 
same delay and the ss^me right. 

It is necessary, therefore, to consider the 
effect of the answer of the jury to the 8th 
question, as it presents itself and to see whe- 
ther the condition contained in clause 12, 
should have its full effect, not having been 
observed by the plaintiff, inat<much as his 
claim (though in the opinion of the jury nei- 
ther false i\or fraudulent) was, nevertheless 
not made " in due form," before the 14th day 
after the fire, or even afterwards. 

The presentation of the claim within the 
delay and according to the form prescribed by 
the conditions of the policy, is a matter re- 
quired both by English and French law, and 
if these forms and conditions are not strictly 
observed and fulfilled, within the prescribed 
time, the result is a forfeiture, and a prescrip- 
tion in favor of the insurers, and the insured 
cannot bring his action. I have to repeat 
here what I cited from Quenaulij when I ren- 
dered judgment in the case of Rachie v. The 
Eq^dtable Insurance Company ^ (6 Jurist 89). 
In France the conditions of insurance policies, 
of the same nature as that which creates the 
difficulty in this cape, are regarded as strictly 
binding on the insured. Quenault, Assurance 
Terrestre, No 252. ^^ Si les assureurs ne satis- 
font point & la demande que I'assur^ leur fait 
& Pamiable, il doit intenter contre eux Pac- 
tion en paiement de Tassurance avant I'expi- 
ration du delai fix6 pour la prescription de 
cette action. '^ Further on, in his trau relation 
of the work of Marshall, chap. 6, p. 37 7-384, he 
cites several judgments of the English Courts, 
which leave no doubt as to the necessity of 
the insured makingproof of the production of 
his claim in due form before he can recover, 
even in the event ot di. formal verdict in his 
favor. It must be the same, and with a great 
deal more reason, in a case like this where the 
verdict is only special and qualified. It admits 
the claim and fixes the amount ; but it exprens- 
ly finds the fact that the insured did not make 
his claim in due fortn ^^ according to the con- 
iiitions of the policy,^' unless no meaning be 



attached to the answer to the 8th question, 
which is neither reasonable nor possible. — 
The Court cannot but give effect to this ver- 
dict, which, although as to the fact, and to a 
certain point is in favor of the plaintiff, is in 
law in favor of the defendants. I regret that 
it should be so^ and that the plaintiff should 
fail on a point which may seem weak, after 
obtaining from the jury answers favorable to 
the real merits of the case, since the jury ex- 
onerates him from the reproach of fraud or 
false representation. But the mode in which 
I have viewed the case and framed my judg- 
ment, will have this advantage, that the case 
being reduced to. a question of law, the plain- 
tiff may have it reviewed at small cost with- 
out having recourse to a new trial. The se- 
cond motion of the plaintiff is rejected, and 
the third motion of the defendants (for judg- 
ment) is granted. 

Perkins & Ramsay, for the plaintiff. 

Torrance d: Morris, for the defiendants. 



SUPERIOR COURT. 

November 28th. 
DORWIN BT AL. V. THOMSON. 

Promissory Note — Forgery of EndorsaMon — 
Proof 

Held, that the genuineness of the signature 
to or endorsement upon a promissory note 
ceases to be presumed the moment the 
defendant denies it in his plea supported 
by affidavit *, and the plaintiff must m^kke 
proof t)f the same. ^ 

Held, also, that in the circumstances the 
plaintiffs were guilty of negligence in . 
accepting the note without sufficient cau- 
tion. 

MoNDELET, J. This is an action for the 

recovery of $2500, being the amount of 

a promissory note dated 2nd March, 1866, 

signed by Daniel McNevin, to the order 

of Johnston Thomson, the defendant, 

payable at the Bank of Montreal. The 

defendant admits having signed as endorser 

a note which was then for $500, but adds 

that since he so endorsed it, it was made 

into a note for $2500, and pleads that 

this forged note is null' and void. The 

defendant has supported his plea by a 

special affidavit embracing an absolute 

traverse and denial of the genuineness 



Deceftiber, 1867.] 



THE CANADA LAW JOURNAL. 



131 



of the note^ which the defendant swears 
has been forged and altered as above men- 
tioned in his plea, and has beei^ so forged 
and altered since he endorsed it. 
^ It is hardly necessary that I should pre- 
mise by stating that in the investigation of 
this case, I have altogether, to use a fami- 
liar expression, thrown overboard whatever 
remained on my mind of the evidence and 
circumstances as they were proved before 
me in the Queen's Bench when the trial of 
McNevin took place in the Criminal Court, 
which I presided over. I am, as in duty 
bound, solely governed by the present 
case as it comes up. 

The first question to be determined, and 
it is a very important one to the plaintiffs, 
is, whether in the face of defendant's plea, 
supported by his above mentioned affidavit, 
the genuineness of the note is stiU to be 
presumed, and as a consequence, whether 
the plaintiffs were or were not absolved 
from the obligation of proving their case, 
in all its bearings. Here is the section (86 
of ch. 83, C.S.L.C.) : << If in any such action 
(on a bill of exchange or promissory note, 
&c.,) any defendant denies his signature, 
or any other signature or writing to or upon 
such bill, note, cedule, check, promise, act 
or agreement, or the genuineness of such 
instrument or of any part thereof, or that the 
protest, notice and service thereof (if any 
be alleged by the plaintiff) were regularly 
made, whether such denial be made by 
. pleading the general issue or 'other plea, 
such instrument and signatures shall never- 
theless be presumed to be genuine, and 
such protest, notice and service to have 
been regularly made, xmless with such plea 
there be filed an affidavit of such defend- 
ant, or of some person acting as his agent 
or clerk, and cognizant of the facts in such 
capacity, that such instrument or some ma- 
terial part thereof, is not genuine, or that 
his signature or some other to or upon such 
instrument is forged, or that such protest, 
notice and service were not regularly made, 
and in. what the alleged irregularity con- 
sists.'' From the precise wording of the 
above recited section, it is evident that the 
genuineness of the note now in question 



ceased to be presumed the instant the de- 
fendant specially denied it in his affidavit. 
It is also evident that the plaintiffs had to 
prove that the note they sued upon is a 
genuine note, and not a forged one in part, 
as solemnly sworn to by the defendant. 
The defendant might have rested his case 
there. Our law is precise and imperative ; 
there is no choice for plaintiffs, but to make 
out their case, the onus probandiheing upon 
them, with respect to the genuineness of 
the note. Singularly enough, the plaintiffs 
have not considered their case in that light, 
and since they are advised to rest it upon 
what they have done, I presume, they 
either view the section of the statute to be 
in their favour, or that the defendant has 
made such admissions as to exonerate them 
from the obligation of proving their case. 
The Court is, therefore, called upon to ad- 
judicate upon the case as it now presents 
itself for consideration. 

In ordinary cases, when the signature is 
not denied, when the genuineness of a note 
or of any instrument is not gainsaid, the 
same are presmned to be genuine and true. 
It is also certain that in pleading to such 
an action as. the present, the defendant 
might have made such.admissions as would 
have taken the onus probandi off the plain- 
tiffs. Principles governing such cases are 
as well known as they are obviously ele- 
mentary. But to the application of such 
general principles, so sound, so reasonable 
in themselves, and so practically wise, our 
Provincial law has very wisely also, . and 
most logically, appended an exception 
which is equally wise and logical j and by 
our own law and not by any other, and 
much less by decisions which are not under 
its provisions, is this case to be governed 
and decided. The Court must, therefore, 
in obedience to the law, declare that the 
plaintiffs have, in all respects, failed to 
prove their case, and that were there no 
evidence whatever adduced by the defend- 
ant, in support of his plea, supported by 
Ms affidavit, there would be no other alter- 
native for the Court than to dismiss the 
plaintiff's action. 

The features of this case, however, aret. 



132 



TffE CANADA LAW JOURNAL. 



[December, 1867. 



such, that the whole commercial public, 
the Banks, and individual members of the 
community are deeply interested in know- 
ing what the Court is prepared to decide, 
and how such transactions as those disclos- 
ed by the evidence in he record, are to 
be viewed in a legal, as well as in a moral 
and social aspect. 

It is clearly proved, not only by Dr. Gird- 
wood, that the note in question has been tam- 
pered with, as will be shown, but by Daniel 
McNevin himself, and other evidence in the 
case, which has not and cannot be contro- 
verted, that this note has been altered and 
in part forged, since the defendant append- 
ed his signature as an indorser thereto. 
I should now properly observe that the 
very appearance of the note would naturally 
catch the eye of an observing, careful and 
prudent man, and although we have had 
statements made by most respectable and 
intelligent men to the contrary, I must be 
permitted to say, that it tells more for 
their confiding disposition, than for their 
discrimination. Cashiers of Banks, who 
have such enormous and diversified num- 
bers of notes sent for discount, may either 
go over such arduous work hastily, liberally, 
if you choose to use such an expression, or 
they may be greatly influenced by the 
fact of the signature of such a person as the 
defendant being found on the back of a 
note, as endorser. This, however, does not 
alter the case, and surely any one who has 
no interest in the matter, cannot, in my 
opinion, so far be blind as not to see, even 
without the use of a miscroscope, that the 
word "twenty" was written at a different 
time from the words which immediately 
follow it, and at a period^'different and sub- 
sequent to the writing of the other words. 
It is plain to the eye that the word " twen- 
ty" is ^itten on a higher level than the 
words "five hundred." As to the figure 
"2" at the head of the note, it appears to 
the eye to be written with a pen less full 
of ink than the figures "500" which fol- 
the figure "2," and much lighter than the 
figures "500." The word "twenty" also 
appears to be written a little higher than 
the words which follow. I wish to be 



clearly understood as to what immediately 
precedes. The decision of this case does 
not, of course, rest upon what I have just 
above stated as to the appearance of the 
note. I have taken the trouble to make 
myself sure in that respect, and to justify 
my inference, that any careful, close-ob- 
serving person may, at once, not precisely 
determine that the note has been tampered 
with, but suspect or suppose that such has 
been the case. This is not without its 
importance as to the application of what 
the plaintiffs have maintained to be the 
law with respect to negligence in such 
matters. Let us now probe the evidence 
and ascertain how the merits of this case 
stand. I start from this, that, as well by 
the evidence of Dr. Girdwood, who scien- 
tifically and with the assistance of a micros- 
cope, not only fully bears out what by the 
naked eye must be suspected, but actually 
reduces to the certainty of facts, such sur- 
mises, — as well, I say, by the evidence of 
Dr. Girdwood, as by other circumstances in 
this case, the note now before us has been 
interfered with, altered and forged, subse- 
quently to the endorsation thereof by the 
defendant. This note was originally made 
for $500, by Daniel McNevin, it was endors- 
ed as such, by the defendant, and subse- 
quently it was transformed into a note for 
$2500, by the insertion or addition of the 
word "Twenty," without the consent or 
knowledge of the defendant. It would not 
matter whether the forgery was or was not 
committed by Daniel McNevin, the maker 
of the note, since it turns out not to be the 
genuine note endorsed by the defendant, 
but a forgery. However, can any one 
doubt* that it must have been so altered by 
Daniel McNevin? The note is signed by 
the latter, endorsed by the defendant, who 
is not proved, and is not presumed to have 
altered it, and who could not have effected 
such alteration, since it was taken away 
kept and used by McNevin, who went to 
the plaintiffs whose endorsation appears 
on the back of the note, and who, of course, 
are not to be presumed to have altered and 
forged it, but who were guilty of gross ne- 
gligence in readily and without suspicion. 



December, 1867.] 



THE CANADA LAW JOURNAL. 



133 



taking and accepting of such a suspicious 
looking paper, especially as it was offered 
to them for discount by the maker of the 
note himself. 

So far, it is made out that the note is 
not that which was originally endorsed by 
the defendant. The certainty of the altera- 
tion is more glaring when we come to the 
calm consideration of other circumstances, 
which are of a remarkable character. The 
maker of the note, Daniel McNevin, is ex- 
amined, and what do we learn from him ? 
We have it out of his own mouth, that all 
that was filled in in the note, at the time 
the defendant endorsed it, was what is 
therein written, as follows: the date, the 
words '< five months,'^ the letter "S,'* and 
the words "Johnston Thomson, Esquire," 
and nothing elsej and that there never 
was pen or ink to the amount till after. 
There is an answer by McNevin to a ques- 
tion which has more significance than to a 
superficial observer would perhaps appear. 
He is asked: "When was the word twenty 
written in ,the body of the note?" He 
answers: "On the same day that the rest 
of the sum was filled in." He might have 
stopped and gone no further, though this 
answer is anything but satisfactory, since 
it may be true that he wrote the word 
"twenty" on the same day that the rest 
of the sum was filled in, and still it may be 
equally true that at a different hoiir of the 
same day, the word "twenty" may have 
been written, and thereby the forgery con- 
summated. But, as if disturbed in his 
mind and troubled in his conscience, and 
possibly losing his balance, he verifies the 
adage, ' ' Mentiiio est siM iniquitas j " he adds, 
^< Sometimes it was on the same.day ; some- 
times a week after." What does this indi- 
cate? It clearly shows what that man Mc- 
Nevin's mode of operation was. That is 
the key which leads us into the secret of his 
doings. What next? McNevin is shown 
a bill book produced in the case by his 
assignees, and he acknowledges that the 
entries have reference to the note present- 
ly sued upon. He adds that the notes do 
not precisely correspond, but that the 
entry refers to the same note. Now, let us 



see what the entry is in the bill book of 
which the blank sheets are cut out and 
marked £. It is as follows : 



In favor of 
Johnston Thomson. 
Dollars Bemarks. 

600 Dorwin 



Pate Drawn 

March 8 D. McNevin 
Time When due 

5 months, 1866 8-6 August 

The same thing appears also on the sheet 
marked C, which McNevin identifies, and 
adds that the notes therein mentioned, 
(and the note in this case is one of them) 
are filled up for larger amounts than what 
appears on the said paper or sheet C. It is 
also acknowledged by McNevin that the 
figures "2,500," and the name "Dorwin," 
filled in on paper D, also identified by 
McNevin, are in his own handwriting. This 
last acknowledgment has reference to se- 
veral entries in paper D, and amongst these, 
one concerning the note in this case, which 
is one of several notes acknowledged by 
McNevin himself in writing to have been by 
himself altered, after receiving the defen- 
dant's endorsation to the original amounts. 
An objection was made by the plaintiffs to 
the filing of this paper, which objection is 
unfounded. This paper is not the ground 
work of the defence, but is a piece of 
evidence proved by McNevin himself, which 
must assist us in coming to a right conclu- 
sion. 

It is right I should give the plaintiflfe the 
benefit they, at the hearing of the case, ap- 
peared to expect to derive from an explana- 
tion given by McNevin of a statement he 
made in his deposition, that the " defend- 
ant, when he endorsed his name on the said 
note, took a note of the amount thereof;" 
and what explanation does McNevin offer ? 
The saying of Horace, ^^In culpam ducit cul- 
paeftigcL, et caret arte, * ' is quite in point. ^ * I 
mean," says he, "that he [Thomson] took 
note of the amount that I verbally stated to 
him." What? Thomson took a note of 
the amount 1 And in the same deposition 
you tell us that the amount was filled up 
subsequently to the endorsation^ and that 
"sometimes on the same day, and some- 
times a week after," which must refer to 
others, and, no doubt, the notes enumera- 
ted in paper D, which you acknowledge to 
have altered as to the amount after you 



134 



THE CANADA LAW JOURNAL. 



[December, 1867. 



had obtained Thomson's endorsation, and 
you would fain make us believe that the 
defendant, who is proved to be a cautious 
and intelligent man of business, would 
have followed a course which no man of 
sense would pursue even with respect to a 
single note ? Why, the attempt is so flim- 
sy, so absurd, that it requires only to be 
mentioned to be at once disregarded. 

An ingenious, perhaps, but unavailing 
effort was resorted to, for the purpose of 
breaking down the conclusive evidence of 
Dr. Girdwood. That, again, defeated it- 
self inasmuch as Dr. Girdwood, without 
even the assistance of the microscope, and 
having but his own eye to enable him to 
examine and probe the writings submitted 
to him as a test, was mistaken solely as to 
one particular, and turned out to be right 
in every other respect. The process, to be 
on an equal footing, should have had as its 
medium, the same microscope which was 
used with respect to the note in ques- 
tion in this case. However, the fact that 
the unassisted eye of Dr. Girdwood led him 
to a correct conclusion in every particular 
but one, even according to the witness 
Clarke, who, by-the-by, is not a scientific 
man, tells highly in favor of the correct- 
ness of Dr. Girdwood when he states, as the 
result of his scientific probation, what by 
the naked eye any one may, with perfect 
safety, testify to. This is so plain, so glar- 
ing, that I think it useless to dwell any 
further upon it. I would merely remark 
that upon the whole, the evidence of the 
witness, Clarke, who, as already mentioned, 
is not a scientific man, and who has made 
no pretentions to science, is anything but 
satisfactory. At all events, it would be 
altogether out of place, to compare the 
evidence of Clarke to that of Dr. Girdwood. 

Another line of warfare against the de- 
fendant has been resorted to, for the pur- 
pose of showing him up, either as wanting in 
mem6ry, or in truth and honesty, when he 
stated he never endorsed for Mc^evin, for 
any amount exceeding a certain amount. 
Mr. Auldjo was brought up as a witness. 
His evidence amounts to this and no more : 
That he showed Thomson, who wan ill, a 



note by him endorsed, purporting to be for 
$2,475, and one for $2,500, made by Mc- 
Nevin. Defendant looked at them, turned 
them over and refused to discount 
them. That is all. Auldjo was sent to as- 
certain merely if defendant's signature on 
the back of the note was genuine, and the 
way he went about it was to ask Thomson 
if he would discount them. Any inference 
drawn by Auldjo from Thomson having 
looked at the notes and refused to discount 
them, is altogether gratuitous, and is of no 
weight whatever. As to inferences, sur- 
mises, or suppositions, one not altogether 
unreasonable, judging from what we have 
already in evidence, is that these notes so 
shown to Thomson by Auldjo were not im- 
probably also forged notes, and some of 
those which McNevin has acknowledged to 
to have altered, and that Thomson consi- 
dered it prudent to be silent about that at 
the time. 

It does not seem to me that I should ad- 
vert to the mortgage any more than to 
state that it shows very clearly what the 
relative position of the parties was : $8,000 
was the agreed maximum of defendant's 
assistance by indorsation, which amount 
was by the fraudulent acts of McNeyin 
swelled to $40,000. 

Much was said about the pretended ne- 
gligence of the defendant in leaving a 
blank space before the words " five hun- 
dred," that it was an occasion and a temp- 
tation to people to alter the amount. To 
what end is this urged ? Is it to palliate the 
enormous crime of forgery ? Is it because an 
object is left lying any where, that the thief 
is excusable, and less a thief? Is it because 
an honest, (5bliging man, kindly assisting a 
supposed honest friend, by endorsing large- 
ly for him, leaves a blank space before 
the amount specified in the note, that this 
dishonest friend is to be the object of the 
commiseration and sympathy of others who 
either have loose principles, or who are to 
lose something from carelessness in dis- 
counting such notes ? I cannot for a mo- 
ment suppose, much less suspect, that 
there is amongst the highly respectable 
body of our merchants, in Montreal, a dis- 



December, 1867.] 



THE CANADA LAW JOURNAL. 



135 



poBition to act upon such principles, not 
only opposed to all notions of right and 
decency, but highly dangerous to the in- 
terests of every man of business, and to 
those of the community at large. Honesty 
is the best policy, in theory nothing truer ] 
practically no truth more glaring. This 
brings us at once to what has been pre- 
sented as a question of law, the negligence 
of the defendant who, it has been pre- 
tended, should suffer. Thomson has acted 
like many others, as is proved in this case, 
who leave such vacant spaces before the 
amount specified in notes or checks, and 
are not the less men of business, and are 
not noted as negligent, careless men. K 
there has been negligence in this matter, 
it is brought home to the plaintiffs, who, 
from the appearance of the note presented 
to them, not by the endorser but by the 
maker himself, (thereby showing it was an 
accommodation note) should have looked 
into it, and inquired, instead of discounting 
it so readily, tempted, it is to be presumed, 
by the consideration they obtained there- 
for, from a man on the verge of bankrupt- 
cy, and fast drifting to his utter ruin. 

The law is plain on this point, and the 
doctrine of Scacchia is, as is very judiciously 
remarked by Pothier, to be restricted to 
the case of the fault lying with the Ureur 
de la Uttre de change, but such a fault as 
that the falsification might deceive uneper- 
Sonne attentive et intelligente. It is, more- 
over, to be borne in mind, 1st, that either 
from not haying sufficiently reflected upon 
Scacchia' s extreme propositions and equally 
extreme and forced deductions, most of 
those who have written after him, have 
crudely copied him. 2nd, Pothier, as we 
all know) was a great casuist, an admirable 
moralist, and essentially an honest man. 
We are all aware that many of his decisions 
apply more to the moral than to the strictly 
legal obligations. If, then, Pothier him- 
self restricts the decision of Scacchia, to 
such falsification as was effected through 
the fault* of the tireur, and that we apply 
the same principle, or rather, the same 
reason, to the endorser, how can we in 
justice, refrain from applying it against 



the Banker or Broker, or whoever he is or 
may be, from whom the discount is obtained, 
of a promissory note which bears the very 
plain and striking appearance of alteration ? 
The plaintiffs have no excuse ; it is their 
own fault, their own negligence, or their 
anxiety to derive a considerable discount or 
commission, which has blindfolded them. 
Is it for a moment to be seriously main- 
tained that they must be preferred to, 
and more indulgently treated than a kind- 
hearted friend to an ungrateful and heart- 
less forger, in whom }ie had placed such 
confidence as to endorse to the amount of 
$10,000 or $11,000, and every principle of 
justice and morality to be set aside, in order 
to victimize an honest man, and enrich im- 
prudent lenders of money to such a man 
as the maker of the note in question, who 
has acknowledged himself to be a forger, 
and who so clumsily did alter the note, 
that any one but the money making (by 
loaning) plaintiffs should either ^ have at 
once detected the alteration, or suspect- 
ing it, should have declined having any 
thing to do with McNevin and the note. 
There should have been hesitation on the 
part of the plaintiffs. The Court can en- 
tertain no doubt in this case, and could 
there be any doubt, the Court would follow 
the judicious rule laid down by Pardessus, 
les tribunaux ne peuvent dScider guepar les 
drconstances. This rule applied to the pre- 
sent case is decisive. Upon the whole, I 
am clearly of opinion that not only have 
the plaintiffs failed to prove their case, 
but that the defendant has made out his 
own case, and proved the forgery, and that 
plaintiffs' action should be dismissed. 

Mackay, Q. C, & Austin, for the plaintiffs. 

Bethune, Q.C, for the defendant. 

[Wood t. Thomson. — ^The same decision 
applied to this case, in which a note for 
$500 had been altered to $2,500. 

Cgilvy t. Thomson. — ^The same decision 
applied here also, in which the note had 
been changed from $447 to $3,447.] 



136 



THE CANADA LAW JOCJRNAL. 



[December, 1867. 



PmVY COUNCIL. 

SCOTT V. PAQUET et al. 
The decision of the tribunal of last resort 
in this celebrated case, pending for so many 
years, will be read with deep interest. The 
judges present at the re-argument on the 
28th and 29th of June, and at the rendering 
of judgment, were Sir John Taylor Coleridge, 
Sir James William Colvile, Sir Edward 
Vaughan Williams, Sir Fitz-Roy Kelly, (the 
Lord Chief Baron,) and Sii- Richard Torin 
Kindersley. 

TheCoimsel for the plaintiff in Montreal 
were Cross & Bancroft, and for the defen- 
dants, Cartier & Berthelot. 
Canatruction of Ordonnanee 1639, Art 6 — 

Marriage in extremis. 

Art. 6. of the Ordomumce of Louis XIII. 
(26th Nov. 1639,) in force in Lower Canada, 
is in these terms: — " Voulons que la meme 
peine (de la privation des successions) ait 
lieu centre les enfants qui sont nes de 




article of the Ordonnanee was a restrict of 
natural liberty, and penal in its nature, it 
was to be strictly interpreted, and only 
when the fact of a party being in extremis 
at the time of the solemnization of the 
marriage was clear and beyond doubt, could 
it be applied. Second, that although death 
had taken place two days after a marriage 
had been celebrated, such Article of the 
Ordonnanee did not affect the validity of 
the marriage, unless the party was at the 
time sensible that he was in his last illness, 
and in immediate danger of dying. 

Suit for nullity of marriage, and to set 
aside a marriage contract, on the ground 
that at the time of its celebration the 
husband was delirious and of unsound 
mind, arising from an attack of delirium, 
tremensj from which disorder he .died two 
days afterwards. The evidence in chief of 
one of his medical attendants being to the 
effect ,that he was imconscious, and, in his 
opinion, from the nature of the disease, 
incapable at any time of contracting, such 
marriage : — 

Heldj on a general review of the evidence, 
to be rebutted especially by the conduct 
of the same medical witness in speaking of 
the probability of deceased's recovery j and 
by the evidence of the Priest, Notary, and 
witnesses at the marriage, of his capacity j 
and the judgments of the Courts in Lower 
Canada sustained. 



This was an action brought by the appel- 
lant in the Superior CJourt, District of Mon- 
treal, against the Respondents, Paquet and 
others, the widow and children of William 
Henry Scott, late of the Village of St. Eus- 
tache, county of Two Mountains, merchant, 
deceased, to have the marriage of Scott 
with the respondent, Paquet, declared null 
and void, as regarded its civil effects, and 
also to set aside the marriage contract exe- 
cuted on the occasion thereof. The appel- 
lant claimed as his sister and heiress-at- 
law. The Superior Court, by its judgment, 
sustained the marriage and contract, and 
that judgment was confirmed on appeal by 
the Court of Queen's Bench in Lower Ca- 
nada. H-ence the present appeal. 

The facts were these : — Scott, a member 
of the Presbyterian Church, had for many 
years cohabited with the respondent, Ma- 
dame Paquet, a Roman Catholic, by whom 
he had a family of five children, whom he 
recognized and treated as his own children. 
In 1845 a marriage was contemplated and 
intended between Scott and Madame 
Paquet, which was to be celebrated accord- 
ing to the rites of the Roman Catholic 
Church, and all necessary preparations were 
made for that purpose, but the completion 
was prevented by Scott's refusal to give a 
preliminary engagement, required by the 
Priest before celebration, that he would 
cause his children to be educated in the 
Roman Catholic religion. 

On the 15th of December, 1851, Scott 
went to the house of Madame Paquet, who 
resided in the village of St. Eustache, just 
opposite to his own, and there sent for a 
Roman Catholic Priest, for the purpose of 
proceeding to a marriage; and finding 
that no other engagement was now de- 
manded of him than that he would leave 
his wife and children free in point of reli- 
gion, he caused a marriage to be celebrated 
between himself and Madame Paquet on 
the evening of the following day, the 16th, 
according to the rites of the Roman Catho- 
lic Church. By the act of marriage, the 
consorts acknowledged as legitimate their 
five children. The marriage was accompa- 
nied by a contract or settlement prepared 



December, 1867.] 



THE CANADA LAW JOURNAL. 



13T 



by a notary. Scott was of intemperate 
habits, and had indulged in drinking dur- 
ing the course of a contested election which 
took place three days previous to his mar- 
riage. He was unwell at the time, and his 
physician, Dr. Jamieson, was with him dur- 
ing the greater part of the day of his mar- 
riage. His illness increased, and according 
to the medical testimony, although the 
nature of his disorder had not been origi- 
nally understood, yet it ultimately declared 
itself to be delirium tremens* As late as the 
17th of December, Dr. Jamieson considered 
that the disease, though of an aggravated 
obaracter, would* give way to the treatment 
which he and Dr. Fisher, another physi- 
cian, recommended. But the prescribed 
treatment was not followed, and Scott sank 
and expired on the 18th of that month. 

Prom the death of Scott to the period of 
the institution of the action, his children 
publicly enjoyed the character of being his 
legitimate heirs, and were judicially admit- 
ted to accept his succession with benefit of 
inventory. The respondent, Paquet, had 
also, since Scott's death, been in possession 
of the immoveable property which he by 
the marriage Contract settled on her in case 
of her surviving him, and which contract 
was, in April, 1852, duly registered. 

On the 4th of March, 1854, the appel- 
lant brought an action against the respon- 
dent, Paquet, and the five children of Scott, 
in the Superior Court for Lower Canada, 
District of Montreal. The declaration stat- 
ed that Scott had died intestate, leaving 
three sisteis, his only surviving relations 
and heirs-at-law, two of whom had renounc- 
ed his estate, the appellant accepting it as 
sole heiress-at-law j that in December, 1851, 
he fell ill of the malady that caused his 
death J that his disease became so aggra- 
vated that, on the 15th of December, he 
was delirious, and so continued up to his 
death; and that, while in that state, he 
was quite incapable of entering into any 
contract or granting any valid consent; 
that he had lived many years in a state of 
concubinage with the respondent, Paquet, 
without marrying her or acknowledging 
her as his wife ; that while in a state of de- 



lirium, and incapable of consent, she, pro- 
fiting by his condition, on the 16th of De- 
cember, 1851, procured a pretended mar- 
riage to be solemnized between her and 
Scott, and, on the same day, procured a 
pretended marriage contract to be execut- 
ed ; that by the register of the marriage it 
was endeavored to recognize as legitimate 
the children of the illicit connection and 
the provisions of the contract; that Scott 
was at the time of the marriage in a state 
of delirium, and in extremis^ and aflflicted 
with the malady whereof he died, and the 
pretended marriage was clandestine, cele- 
brated without the knowledge or consent 
of Scott's relations, and was neither pub- 
licly solemnized, nor accompanied by the 
necessary formalities, nor followed by con- 
sent on his part, and that the respondent, 
Paquet, and the other respondents, had 
assumed to be the heirs of Scott, and had 
taken his estate into their possession, and 
the declaration prayed that the pretended 
marriage and contract of marriage might 
be declared null and void. 

The respondents filed their |^leas, con- 
sisting of two sets of exceptions peremp- 
toires and a defense en fait. The first set of 
exceptions referred to the capacity of the 
appellant to maintain her action, and was, 
in substance, to the following, effect : That 
the appellant being only ja collateral rela- 
tion, could not maintain such an acti^ ; 
that ever since the death of Scott, the 
respondents had assumed the character of 
his representatives, and that their right to 
that character had been publicly recogniz- 
ed, and had been acquiesced in by the ap- 
pellant ; that the appellant had recognized 
their right to such character by transfer- 
ring to Barbara and Jane Scott her rights 
as one of the legatees of Scott's father, in 
a sum of money due on a judgment obtain- 
ed by Scott's father, on the 24th April, 
1824, against Scott and another, and that 
the appellant could not maintain her ac- 
tion without joining her sisters as co-plain- 
tiflfe. The second set of exceptions referred 
to the merits of the case, and was to the 
following effect : That for many years Scott 
and the respondent, Paquet, lived toge- 



138 



THE CANADA LAW JCTCJRNAL. 



[December, 1867. 



ther as husband and wife, under promises 
frequently reiterated by Scott, that he 
would marry her *, that the appellant and 
her sisters were aware of this, and recog- 
nized the position of the respondent, Pa- 
quet, and her children : that about twelve 
years previously Scott had intended to 
fulfil his promise of marriage, and had as- 
sembled his friends and the priest for that 
purpose, but was prevented from so doing 
by understanding that the priest required 
him to make oath that he would allow his 
children to be brought up as Roman Catho- 
lics ] that it was with the view of oarrying 
this intention into effect that he contracted 
the marriage complained of; that «uch 
marriage was contracted legitimately and 
lawfully in the presence of aBoman Catho- 
lic Priest, duly authorized to celebrate such 
marriage ; and that Scott was at the time 
soimd in mind. The defense en fait put in 
issue all the statements contained in the 
appellant's declaration. 

Witnesses were examined on behalf of the 
appellant and respondents. The appellant 
objected to the reception of the evidence of 
the respondent's witnesses, so far as it went 
to prove that a marriage had been celebrat- 
ed, on the ground that verbal evidence of a 
marriage was inadmissible by law, and such 
objections were reserved, but the evidence 
was afterwards admitted. The evidence as 
to the capacity of Scott was conflicting. On 
the part of the appellant, Scott's medical 
attendants. Dr. Jamieson and Dr. Fisher, 
•declared as their opinion, that in the case 
of a person suffering from delirium tremens 
there could be no lucid interval during 
which he could have the use of his facul- 
ties, or be fit to contract any kind of bus- 
iness, that Scott was in a state of delirium 
tremens just before and immediately after 
the alleged ceremony, and that it was a 
scientific fact that this disease never leaves 
the patient until it leaves him finally ; that 
there may be times at which it is more in- 
tense than at others, but that the patient is 
never perfectly sane. The evidence for the 
respondent consisted of the depositions of 
the Notary, Priest, and others who were pre- 
sent at the marriage ceremony, and they 



deposed to the perfect sanity of Scott, at 
that time. It was proved that Dr. «}'amieson 
had said, when attending the deceased, 
that he considered that the disease would 
give way to the treatment he and Dr. Fisher 
recommended. No medical evidence was 
produced by the respondents in answer to 
evidence given by Drs. Jamieson and Fisher. 
The cause came on to be heard, and by 
the judgment of the Superior Court, de- 
livered on the 30th May, 1856, the action 
was dismissed with costs, on the ground 
that the appellant had failed to establish 
the material allegations of her declaration. 
The appellant appealed from this judgment 
to the Court of Queen's Bench for Lower 
Canada. The appeal was heard before Ayl- 
win, Duval, Caron, and Meredith, JJ., and 
on the 5th October, 1857, the Court de- 
livered judgment, dismissing the appeal 
with costs. Duval and Caron, JJ., con- 
sidered that all the questions raised by the 
pleadings ought to be decided in favor of 
the respondents, and Meredith, J., agreed 
with them so far as related to the questions 
put in issue by the declaration. Aylwin, J., 
dissented, from the opinion of the rest of 
the Court, and considered that all the ques- 
tions raised on the pleadings ought to have 
been decided in favor of the appellant. 
The present appeal was brought from this 
judgment of affirmance. It was twice ar- 
gued. • 

Mr. GartJif Q. C, for the appellant: — 
Three questions arise : — ^First, we insist 
that the marriage has never been celebrated 
with the forms and ceremonies^required by 

the ancient law of France, in force in Lower 

■ 

* This appeal was first argued in June, 1861, bat their 
Lordships not being satisfied, directed the case to be 
re-argued. It was stated at the Bar that the re-argu- 
ment was delayed by the powerty of the parties not 
enabling them to bring it on for hearing. On the case 
coming on, application was made by the Counsel for 
the appellant for the admission of fresh eridenoe said 
to have been obtaf&ed since the former hearing, 
relatiTO to the mental capacity of Scott. A petition 
shortly after the first hearing had been lodged in the 
Council ofllce for that object The Respondent's 
Counsel objected to the affidavit in support of the ap- 
plication being read, or the reception of new eyidence 
after the long delay, and their Lordships were of opin- 
ion that in the dreumstanoei such an application 
could not be entertained. 



December, 1867.] 



THE CANADA LAW JOURNAL. 



13^ 



Canada, so as to constitute a valid marriage. 
[The Ijord CmEP Baron. If there was a 
marriage de faciOj it lies on you to show it 
was invalid in law.] To be valid it ought 
to have been performed by the Parish* 
Priest: Dagusseau, Tom, v. pp. 150 — 153; 
PoihieTf verbo ^^Mariagcj^^ Partie 1. Ch. i. 
No. 3 ; PothieTj du Control de Mariage, Partie 
IV. Ch. 1. sec. 3, Art. 1, par. 5, No. 350 
[Ed. 1781] J Dantyj'p, 102 j Durandde Mail- 
lanne, Diet. Can. voce "Clandestin," Tom, 
1. p. 523 [Ed. Lyons, 1770]; De Hericourt, 
Loix, EccUs. Ch. v. Art. 1, No. 27, p. 474. 
[The Respondent's Counsel objected to this 
point being now raised, a^ in the declara- 
tion the appellant had admitted the mar- 
riage, and only sought to avoid it as being 
celebrated when Scott was in extremis and 
unconscious, and submitted that it was not 
for the respondents, to give formal proof 
of ihQ factum of such marriage ; but that if 
it were necessary, the proofs were sufficient 
according to the Provincial Statute, 35 
Geo. 3, c. 4, sec. 4, which only requires the 
presence of two witnesses.] This point was 
not further argued. Second, the evidence 
of the medical attendants of Scott shows 
that at the time the marriage took place 
between Scott and the respondent, Paquet, 
which was only two days before his death, 
Scott was d VexiremiUde la vie, so as to ren- 
der such marriage null and void by the 
.Ordonnance of Louis XIII. of 1639, Art. 6, 
and the Edict of the year 1697 ; depriving 
of civil effect marriages in extremis ; Pothier, 
Tom. V. p. 238, Partie 5, Ch. 11, p. 429 ; lb. 
239 ; Merlin^ s Rep. de Jur, verbo " Mariage,^^ 
Tom. XIX. Sect. 9, Art. 3 ; lb. Tom. VIII. 
Siec. 19, par. 1, No. 3, p. 47 ; [Quarto Ed.] 
Third, the evidence establishes the fact, 
that at the time of the pretended marriage 
Scott was delirious and unconscious from an 
attack of delirium tremens, and then incap- 
able of entering into any valid contract. 

The Counsel for the respondents were 
not called upon. ^ 

July 10th. 

The Lord Ceobf Baron : This is an appeal 
from a judgment by the Court of Queen's 
Bench for Lower Canada, affirming a decis^ 
ion of the Superior Court of that Province, 



in an action brought by the appellant 
against the respondents, and in which the 
question to be determined was, whether a 
marriage between William Henry Scott, de- 
ceased, and the respondent, Marie ]tf arguer-^ 
ite Maurice Paquet, on the 16th of Decem- 
ber, 1851, was valid or void. Several ques- 
tions were raised (but disposed of during 
the argument) upon the alleged non-com- 
pliance with the formalities essential to the 
validity of a marriage by the law of France, 
which prevails in Lower Canada. The ob- 
jections to the marriage upon these grounds 
(which appeared when duly considered to> 
be unsupported by the authorities) were 
abandoned by the Counsel for the appel- 
lant. Two questions alone remain: The 
first, whether this marriage was contracted 
while Mr. Scott was " d Vextr&mit6 de la vie," 
within the meaning of the 6th article of the- 
Ordonnance of 1639 ; the second is whether, 
at the time when the marriage was so con- 
tracted, Mr. Scott was of sound mind and 
in possession of his faculties. Both these 
questions have been decided in favour of 
the respondents, unanimously by the three 
Judges of the Superior Court, and by three 
Judges out of four of the Court of Queen* s 
Bench in Lower Canada. And we tjjiink 
that this Court ought not, unless there be 
manifest error in the judgments under ap- 
.peal, to over-rule these decisions so pro- 
nounced in the Country in which the law 
of France, by which the first question must 
be determined, prevails and must be known 
and continually acted upon by the Courts of 
Law; and in which, also, the witnesses on 
both sides reside, and may have been more 
or less known to, or seen, when under ex- 
amination, by the judges, or some of them, 
who likewise are familiar with the usages 
and customs of the place in which all the 
circumstances which formed the subject of 
the evidence occurred. The language of the 
Ordonnance is this : " Vouhfis que la mime 
peine (de la privation des successions) ait 
lieu contre les enfans qui sont rUs des femmes 
que Us phres ont entretenues, et quHls Con- 
sent lorsquHls sont d Vextr4mit6 de la vieJ*^ 
Pothier, (No. 430) says: ^^11 faut que ceux 
qui attaquent ces manages prouoent deux 



140 



THE CANADA LAW JOURNAL. 



[December, 1867. 



cho9es\ — 1. Le mcmvais commerce qui a pri- 
c6d6 U moaiage, 2. Que la personne iUdt 
in extremis hrsgue le mwiage a 4U conti^acU. 
Le manage est censi contracU in extremis 
lorsgtte la personne iiait au lit, mcdade cPune 
maladie qui avait un trait prochain d la 
mortj guoiqu^eUe ne soit morte que quelques 
mois aprhsJ*^ Several cases appear to have 
been decided upon this Ordtmnanee, the 
effect of which is well expressed in Mer- 
lin's ^^ B^ertoire,^^ verbo ^^Mariage,^* sect. 
19, par. 1, No. 3, p. 47, vol. VUI. in 
quarto : — ^^ Le veritable, V unique cos dPap- 
pliquer V Ordonnance est lorsqu^un homme se 
marie dans un temps oit il se sent frappd 
de mcrtj ou la violence du mat et Vimpuis- 
sance des rem^des lui fait sentir que la vie 
est prite d lui 4chapper.*^ It seems from 
this commentary upon the law, that the 
patient must himself feel that he is dying, 
or that the violence of the disease, and 
the inefficacy of all remedies, impress 
him with the belief that life is about to de- 
part. There is nothing in the evidence to 
show that Mr. Scott thought he was a dying 
man. Neither Dr. Jamieson nor Mademois- 
elle Paquet thought so — at least, until after 
the day of the mcuriage. Dr. Jamieson 
himself says : — " From the beginning of 
his disease, I expected that he would re- 
cover from his disease." "On the first, 
second, and third day, I did not look upon 
the disease as a decidedly mortal one.'' — 
"I never conveyed to Scott the idea that 
he was or might be in danger." And in 
another part of his deposition he says: 
^<0n the morning of the 17th, the defen- 
dant, Miss Paquet, inquired of me as to the 
state of the late Mr. Scott. I informed her 
that he was in a dangerous condition, and 
she appeared surprised that the disease was 
at all connected with danger." Besides, 
this law is in restraint of natural liberty, 
^md it must, therefore, be clear, beyond 
doubt, that it is applicable to the particular 
case, before a Court of Justice can hold it 
to be of force and effect to avoid a marriage. 
The great question in the case, however, 
is, whether Mr. Scott was in a state of mind, 
memory, and understanding, to enable him 
lawfully to contract marriage. On the one 



hand, we have the evidence cf Dr. Jamieson 
who visited him first on the afternoon of 
the 15th of December, and found him suf- 
fering under erysipelatous inflammation in 
. the face, arising, as it appears, from his 
having come in contact with a heated stove 
while dozing or sleeping in a chair. Strong 
aperients were administered, and at a late 
period of the afternoon, the Doctor conclu- 
ded that delirium tremens was approaching. 
At this time he quitted the house in which 
he resided with his sister, and proceeded 
to the house of the respondent, Paquet, 
showing signs of great excitement and irri- 
tability, with delusions, as he vresxt along. 
At ti later hour he. was again visited by the 
Doctor, who remained with him during the 
greater part of the night ; saw him again the 
next morning, and left him about two in 
the afternoon, when, as he says, he was'la- 
bouring under delirium tremens, developing 
itself by mental hallucinations. He then 
again left him in the house of the respon- 
dent for some hours, and returned in the 
evening; and from this time until the 
morning of the 18th, it is asserted he was 
wholly incapacitated by this disease from 
doing any act whatever requiring the ex- 
ercise of his faculties ; and in the night of 
that day, the 18th, he died. If Dr. Jamieson 
be correct ias to the existence of delirium tre- 
mens, and the consequent incapacity of Mr. 
Scott, although he does not expressly declare 
that it was impossible he should have been 
competent to exercise his faculties in a ra- 
tional manner, either on the afternoon of the 
15th, or during an hour or more on the 16th, 
it is certainly to be inferred from the whole 
of his evidence, taken together, that no 
such intervals of capacity could have exist- 
ed, and that it was only during the time 
necessary to answer one or two questions, 
or some other very short period of tran- 
quility, that he can be said to have been 
capable of exercising his reason and under- 
standing. 

On the other hand, we have the testi- 
mony of at least three witnesses of unim- 
peached character, and having no inter- 
est whatever in the perpetration of a fraud, 
or in the misrepresentation ot^ suppression 



December, 1867.] 



THE CANADA LAW JOURNAL 



141 



of the truth, who depose to a series of acts 
done by the deceased, which, if truly nar- 
rated and described, prove incontestably 
that Mr. Scott was, during the space of an 
hour and mpre, within which the marriage 
was solemnized, and the marriage contract 
prepared under his instructions and execu- 
ted by himself, in a perfect state of capa- 
city, memory and intelligence. We may 
pass by the communication between Ancey, 
the Eoman Catholic Priest, and Mr. Scott, 
on the afternoon of the 16th, merely observ- 
ing that the deceased, upon this occasion; 
expressed himself rationally while informing 
the Priest of his having had an altercation 
with his sister, that he was desirous that he 
should marry him to Mademoiselle Paquet, 
that he had sent to him for that purpose, 
and when told that a dispensation was ne- 
cessary, he desired that a bishop should be 
written to immediately in order that it 
might be obtained. The following day, the 
16th, upon the arrival of the dispensation, 
the Priest proceeded again to the house 
of Mr. Scott, and found him, as he posi- 
tively and distinctly swears, in perfect poss- 
ession of his imderstanding ; and here 
begins a series of acts on the part of the 
deceased, which, if really done, prove to 
demonstration a state of perfect mental com- 
petency and capacity. He received the 
priest's explanation of the oath or engage- 
ment required, that his wife should be left 
to the free exercise of her religion, and that 
the children might be brought up in the Ro^ 
man Catholic faith; he observed that at a 
former period, (and in this statement he is 
confirmed by P^re Martin, the Priest), he 
was about to marry Mademoiselle Paquet, 
but objected to this engagement on the 
ground that he was required to pledge him- 
self that the children should be so brought 
up, and not merely that ^ would permit 
them to use their own free will as to their 
religion ; he gave the necessary information 
as to the names of his relatives, and the 
ages of his children, in order that the 
usual registration should be made ; he 
took the pen in his hand and wrote the 
name of one of his parents, because the 
priest was unable to spell it ; he sent for a 



notary and his clerk ; he gave instructions 
for the marriage contract, informing the 
notary that his wife was to be required to 
give up the communauU de Mens, and that 
in consideration of this renunciation he 
conferred upon her and her heirs all his 
immoveable or real estate, which he de- 
scribed as situate in the several parishes of 
St. Eustache, and St. Martin j he also gave 
to his wife, but in trust only, in equal thirds 
for two of his sisters, Anne Scott and Jane 
Scott, and his daughter by Paquet, Caroline 
Scott, a large sum of compensation money 
• to which he was entitled by reason of losses 
sustained in the rebellion of 1837 j and, 
besides disposing of the remainder of hi& 
property under this marriage contract, it 
is sworn upon the evidence of Archam- 
bault, the notary, that upon a suggestion 
that he should dispose of his property by 
will, he himself declared that he had de- 
termined to do so by a marriage contract j 
and the contract was drawn up and execut- 
ed accordingly. All this, together with 
the celebration of the marriage itself, is 
confirmed by the independent testimony 
of Mr. Fere, a friend of the deceased, re- 
siding at St. Eustache. It is impossible, 
unless these witnesses are guilty of delib- 
erate perjury, that the deceased was at this 
time otherwise than in perfect possession 
of his mind, memory, and understanding^ 
and of perfect capacity to contract a lawful 
marriage. It is true that, during this pro- 
ceeding, upon a noise being heard from the 
agitation of the shutters by the wind, he 
is proved to have cried out, "They are 
coming I they are coming!" If this were, 
as suggested by the respondents, an ex- 
pression uttered under an idea that the in- 
telligence of the result of his election had 
arrived, it requires no comment. But if it 
were, as insisted by the plaintiff, the man- 
ifestation of a delusion created by delirium 
tremens, it appears to have been dispelled, 
and to have ceased upon his being con. 
vinced, a few moments afterwards, that the 
noise was occasioned by the wind. 

We think, therefore, on the whole, that 
whatever degree of suspicion may natural - 
ly arise from the very cogent and circum- 



142 



THE CANADA DAW JOURNAL. 



[December, 1867 



fltantial evidence of Dr. Jamieson, coupled 
iTith the testimony of the witnesses who 
«poke to the wildness and excitement of 
hjB demeanour during certain portions of 
the three days in question, that all this to- 
gether is insufficient to outweigh the posi- 
tive and distinct evidence of so many wit- 
nesses to the whole scene of the solemniza- 
tion of the marriage, and the preparation 
«nd execution of the marriage contract, or 
to warrant us in setting aside the united 
decisions of the Superior Ck>urt and the 
Court of Queen's Bench in Lower Canada^ 
by which the judgment in favor of the re- 
spondents, and now under appeal, has been 
pronounced. Their Lordships will, there- 
fore humbly report to Her Migestyas their 
opinion that the judgments of the Court of 
'Queen's Bench of Lower Canada and of the 
Superior Court ought to be affirmed, and 
this appeal dismissed; but under all the 
•circumstances of the case, without costs of 
this appeal on either side. Law Rep. 1 
P. C. 552. 



MONTHLY NOTES. 

SUPERIOlTcOURT. 

Oct. 5. 
Leproron v. McDonald, ei ah 
Action for Compensation — Title. 

Moxx, J. This was a case of rather an ex- 
traordinary nature. It appeared that Mr. 
Leprohon, the father, owned a bridge. He 
died leaving five heirs, and one of these heirs, 
the present plaintiff, on the 4th November, 
1864, sold one-fifth part of this bridge to the 
defendant. The consideration was $1000 and 
certain lands. On the 22nd of December, the 
parties entered into a written agreement, and 
in this the price was stated to be $2000, with- 
out any mention of lands. But the plaintiff 
immediately proceeded to say in his declara- 
tion that this was not the true consideration 
at all ] that the real consideration was $1000 
and lands which were worth $1200. Then 
he proceeded to say that McDonald was una- 
ble to convey these lands, because on the 12th 
October, 1864, previously, he had sold them 
to Gol. Ermatinger. This was a fictitious sale 
for the purpose of qualifying Ermatinger to 



defend the frontier as a Police Magistrate.— 
The latter gaye a centre lettre explaining it 
alL There was a sale from McDonald to Er- 
matinger, and from him to the plaintiff. But 
the latter now said that neither McDonald nor 
Ermatinger could give him a yalid deed to the 
lands, as they belonged to the Land Company, 
and he now brought his action against Mc- 
Donald and Ermatinger, claiming the yalue 
of the lands. In the first place His Honour 
had to determine what was the real considera- 
tion. He thought it was fair to say that it 
was probably $1000 and the land. The defen- 

. dants pretended that it was $900 and the land; 
that the land was worth only $100, and that 
even if the plaintiff was entitled to be compen- 
sated to the amount of this $100, they held a 
note against him for $180. The next consi- 
deration was, could the Court determine upon 
the validity of the Land Company's title ? 
Could it declare to the parties, you can never 
give a title, because it belongs to the Land 
Company? The Court could not do that. 
There was another diflScul ty ; the plaintiff did 
not say that the deeds held by McDonald and 
Ermatinger were null and void, nor did he 
pray that they should be set aside. Therefore 
upon the one hand. His Honour could not ad- 
judicate upon the validity of the Land Com- 
pany's titie, and on the other hand could not 
annul these deeds, but must leave them in 
force. It might be that the titie of the Land 
Company was worthless j His Honour had 
some doubts of it. The Court therefore was 
in an embarrassing position. But, further, 
coming to the real cbnsideration for the sale j 
supposing it was $1000 and the lands : What 
were these lands wortii ? Some of the witness- 
es said they would not take them as a present, 
and even if the Court could award compensa- 
tion there was no real value proved. Of the 
$1000 notes for $900 had been paid ,• against 
the balance, tho^defendants had a note for 
$180, which was due before the plea was put 
in. — The Court upon the whole must dismiss 
the action, the plaintiff having "^titles which 
the Court could not annul. 

Day dt Day, for the Plaintiff. 

/. /. C. Abboiij Q. C, for the Defendants. 



December, 1867.] 



THE CANADA LAW JOURNAL. 



14$ 



Beatjdry v. Tate, et ah 
Contract — Putting en demeure — Diligence, 
Moke, J. It appeared that the steamer 
Iron Duke had run aground a little below 
Longueuil in 1865. On the 11th August the 
plaintiff entered into an agreement with the 
defendants to have this boat launched or 
taken offth^ rocks. The contract was that 
the vessel should be removed within fifteen 
days from that ^date, the defendants to be al- 
lowed $500. This would bring the period for 
fulfilling the contract to the 27th. The de- 
fendants went to work in pursuance of this 
contract. Some of the witnesses si^id there 
were sufficient labourers at work, and some 
said 4here were not. Some of the witnesses 
stated that the boat was stuck in such a way 
on the rocks that it was impossible to get her 
off. Whether that was the case or not, the 
fact was that they did not get her off; and on 
the 28th the boat took fire, and was burned to 
the water's edge. It did not appear that a^ 
ter this they exercised any great diligence to 
get her off. The boat remained there till the 
month of December, when she was carried off 
by the ice, floated down, and sustained great 
damage. Mr. Beaudry now brought his ac- 
tion for the damage done. The only questions 
for the Court were, first, did the defendants do 
diligence? They contended that they had 
not been put en demeure, Mr. Beaudry had 
never protested them. Mr. Beaudry was there 
frequently, and if they were not doing what 
they should have been doing, they say he 
should have protested them. Now, this put 
ting en demeure was generally necessary, 
but in this case there was a precise limit ef 
time fibced, and this just happened to be one of 
those contracts where time was of the essence 
of the contract) and in all such contracts put- 
ting en demeure was not necessary. Again, 
it ^ae contended on the part of the defen- 
dants, that Mr. Beaudry, being present while 
the work was going on, acquiesced in tke 
manner in which it was proceeding. But it 
was not his business to interfere. It was not 
to be supposed that Mr. Beaudry could judge 
what was necessary. Then, the Oourt came 
to the question, whether in ppint of fact, the 
defendants did do diligence. It was pretty 
well established by the evidence which thf y 



had adduced, that they had three, five, ten 
men on the. spot, and sometimes more^- 
They found that they had made a hard bar- 
gain J but if the job was one of such difficulty, 
they ought to have employed more men. 
Powell, one of the witnesses, stated that 
they had all the men they c^uld usefully^ 
employ ; but the evidence of Lesperance was 
to the effect that thirty men at least should 
have been employed ; that thirty men would 
hardly have been sufficient, and that there- 
was no diligence done at all. The witnesses 
for the plaintiff concurred in saying that the 
number was altogether inadequate, and it might 
be easily understood that three or four men 
were not enough to raise a vessel. His Hon- 
our therefore came to the conclusion that the 
defendants did not do diligence, and that they 
did not employ sufficient force. The Court 
came now to another important point in the 
case, which was of real difficulty. His Hon- 
our did not know how far, as a matter of law, 
the parties employed to launch the boat would 
be considered to be in possession of her, but 
hJd did not think that for all purposes what- 
ever they could be considered in possession of 
her, especially as Mr. Beaudry had a man in 
charge of the boat— a man who was described 
as an idle, drunken loafer, CQoking his victuals 
there. It might be said that the plaintiff had 
possession of the boat through this man, and 
the boat having been burned while in his pos- 
session, the defendants were not responsible, 
the accident having rendered it impossible 
for them to fulfil the contract. On the other 
hand, if the defendants had launched the boat 
on the 27th, the fire might not have occurred. 
The fire, however, not being directly connected 
with the failure to launch her, the plamtiff 
could not claim damages for the loss by fire» 
Even admitting that it was more difficult to 
launch her after than it was before the fire, the 
defendants must be held liable for the damage 
caused by her being carried away, because 
they should have launched her before the 27th. 
But there was other evidence that this was 
not the case, and it stood to reason, inasmuch 
as nothing but the woodwork was burned 
apd she did not sink any deeper on the rocks, 
that there could be no greater difficulty in get- 
ting her off before the fire tLan after it. The 



144 



THE CANADA LAW JOURNAL. 



[December, 1867. 



•defendants had referred to some trifling consi- 
*derationSy but they were not worth consider- 
ing for a moment. They had from the 28th 
of August till late in December to launch her, 
•and His Honour supposed that if they had 
launched her on the 1st September Mr. Beau- 
<lry would not have said anything about it.— « 
But they seemed to be working a little at her 
from time to time till the ice carried her 
away. It was preposterous to say that the 
defendants were not liable, under the particu- 
lar circumstances. They had shown a want 
of diligence and a want of skill. The only 
question, then, was what amount of damage 
was to be awarded ? This was in the discre. 
'tion of the Court ; the evidence was conflicting, 
And His Honour was not disposed to be 
severe in the assessment of damages He 
would not be justified in condemning them to 
pay more than $1000 damages. 

JetU S Archambaultj for the Plaintiff. 

J, J, C. Abbottf Q, C, for the Defendants. 



CIRCUIT COURT. 

Waterloo, Sept. 24, 1867. 
Cole y. Willuhs, and Wood, Intervenant. 
LancUord^s PrwUege — Insoloeney of Tenant 

This was an action upon a Notarial lease 
for rent, instituted by process of Scdsie 
Gagerie. The household ftimiture in use 
by defendant upon the leased premises was 
taken in attachment, and the intervening 
party filed an intervention claiming the pro- 
perty seized as guardian under T. S. Brown, 
the Assignee of defendant, who was an In- 
solvent, and had made an assignment with 
one William Wood to said Brown in 1865, 
the year previous to the lease of plain tiff to 
<lefendant. 

Plaintiff contested this intervention upon 
grounds of insufficiency and irregularities, 
and, more particularly, for the reason that, 
by law, the plaintiff had a special lien and 
privilege upon the property seized, it being 
upon the leased premises and with the 
knowledge and consent of the intervenant, 
where it had remained over eight months 
previous to sei^re. There was also a gen- 
eral denegation. * 



At the trial, the witness of the interven- 
ing party, his son, proved that the furni- 
ture seized was carried by intervenant' s 
team, driven by his son, from West Shef- 
ford to Granby, and put into the house 
leased by defendant from the plaintiff. 

Johnson, J. Judgment for intervening 
party, contestation dismissed with costs. 

/. B. Lay J for plaintiff. 

O, C. V. BucJuman, for intervenant. 

(Authorities cited by plaintiff: — Code 
Cknl, Art. 1619 and 1622: Jones andAndar- 
8ony 2 L.C.R. 154; Ayltcin et a2. v. Giloran, 
4 L.C.R. 360 ; Pothier X(ma^e,Nos. 233 and 
seq.)— <J.B.L.) 



SiNGTTLAB DivoROE SuiT. — In the Rolla Her- 
ald of Liberty are published the proceedings 
in the suit of Aaron Van Wormer t>. Mar- 
garet Van Wormer. The plaintiff is Judge 
Wormer of the Eighteenth Judicial District. 
He sat in his own case, and on the pleadings 
entered a decree dissolving the bonds of 
matrimony between himself and wife. The 
petition alleged ^Hhat the defendant, wholly 
disregarded her duties as wife of the plain- 
tiff, offered such indignities to the plaintiff 
as to render his condition intolerable in this, 
to wit, that the defendant said she would 
stay in no such place as Rolla *, that the 
defendant has frequently left the bed of 
plaintiff, and refused to lodge with hi^i; 
that said defendant has, during most 
of the time since said marriage, been ill- 
tempered, and even at times malignant, 
and for three days at a time had the mad 
dumps silently.' ' Margaret, in her answer, 
<^ admits that the matters and things as 
stated in said petition may be all true/' 
and filed a written consent that the plain- 
tiff might sit in this case ; whereupon it 
was " considered by the court and decreed 
that the bonds of matrimony heretofore 
contracted between the plaintiff and de- 
fendant be dissolved, and that the plaintiff 
be restored to all the rights and privileges 
of a single person." The trial took place 
at a special term ostensibly called for the 
purpose of trying criminals. 



• 'si-iWT-^' 



TABLE OF CASES DECIDED IN THE PROVINCE OF QUEBEC, REPORTED OR 

NOTED IN THIS VOLUME. 



Paob. 

Archambault, Mullin and 90, 117 

Barsalou, Hibbard v 64 

Beaudry v. Brouillet dit Bernard 19 

Beaudry r. Tate 143 

Belanger, Gravelle and 68 

Bertrand v. Brais 37 

Brais, Bertrand v 37 

Brouillet dit Bernard, Beaudry v 19 

Brunei, L'Heureux an(2 61 

Brunet dit L^Etang and Brunet dit 

L'Etang , 69 

Burroughs, Grimard and 85 

Cameron v. Cusson 17 

Cole V. Williams 144 

Connolly v. Woolrych 14 

Courtemanche, Ellice and 126 

Cypiot, Durnford v 20 

Cusson, Cameron v 17 

Dambourges, Lacombe v 10 

Dambourges, Morrisbn and 118 

Darling v, Lewis 36 

Davignon, Messier and 67 

Deguise dit Larose, Lavoie and 68 

Donnelly, Gault and 56 

Dorwin v. Thomson 130 

Dubord v, Lanctot 63 

Dufaux and Herse 90 

Dunlop and Regina, . , 57 

Durnford v, Favreau 19 

Durnford ». St. Marie 19 

Durnford ». Cypiot 20 

Eastty and Fabrique de Montre^ 125 

Ellice and Courtemanche 126 

Fabrique de Montreal, Eastty and 125 

Favreau, Durnford v 19 

Ferres, Rutherford and 83 

Ferrier, Miller v 17 

Fourquin, Ex parte 118 

Grimard ancj Burroughs 85 

Gravelle and Belanger 68 

Gault and Donnelly 56 

Harold and The Corporation of Mon- 
treal 8H 

Herse, Dufaux and ^ A ^ . . 90 



PiiOS. 

Hibbard r. Barsalou 64 

Hopkins v. Thompson 36 

Labelle, McGee and 66 

Lacombe v. Dambourges 10 

Laliberte v, Morin 18 

Lanctot, Dubord v 63 

Larocque o. The Merchants Bank 18 

Lavoie and Deguise dit Larose 68 

Leprohon r. McDonald 142 

Leprohon and Vallee 93 

Lewis, Durnford v ' 36 

L'Heureux and Brunei 61 

Lorrain, Mutual Fire Insurance Co. and, 67 

McDonald, Leprohon v 142 

McGee afu2 Labelle 66 

Messier and Davignon 67 

McGibbou, Rimmer and 65 

McOwan, Stevenson v 38 

Merchants Bank, Larocque v 18 

Miller ». Ferrier 17 

Montreal, Harold and The Corporation 

of.... 88 

Morin, Laliberte v 18 

Morrison and Dambourges 118 

Mullin and Archambault 90 

Mullin t?. Renaud 19 

Mutual Fire Insurance Co. and Lorrain 67 

Parisien and Parisien 60 

Paxton, Regina r. . , 117 

Queen Insurance Co., Wiggins v 128 

Regina^ Dunlop and. . , 57 

Regina v, Paxton 117 

Renaud, Mullin v 19 

Rimmer and McGibbon 65 

Rutherford and Ferres 83 

St. Marie, Durnford v 19 

Stevenson v, McQwan 38 

Tate, Beaudry v 143 

Thomson, Dorwin v 130 

Thompson, Hopkins v 3^ 

Vallee, Leprohon and. 93 

Wiggins V, Queen Insurance Co 128 

Williams, Cole v 144 

Woolrych, Cdnnolly o 14 



tNDEX TO THE PBINCIPAL MAttEES IK VOLUME Jlf. 



PAGE 

Accountant's Report 17 

Action, Staying proceedings 116 

Admission^ to Legal Study 73 

Advocate, retainer 86 

Administration of Justice five and twen- 
ty years ago 121 

Adultery and cruelty 20 

Appeal to Privy Ck>unoil, time to move 

for 117 

Appeal, copy of writ may be signed by 

Attorney 118 

Appomtments 3, 28, 75, 99, 125 

Architect 36 

Attorney General, powers of 57 

Aylwin, Betirement of Mr. Justice ... 2 

Bail, descriptions of 17 

Bankruptcy, Assignments, 8, 28, 72, 75, 

100, 124 

Bar, Beport of General Council 25 

Bench and Bar at Hong-Kong 107 

Bethune,Q.C. (£(.), on Legal Status of the 

Church of England in the Colonies.. 39 

Bill of Lading 21 

Bonded Warehouse 125 

Bonds, recovery of: 48 

Butler's (T.P.) Index to Statutes 3 

Capias, concurrently with assignment . 38 
Caron, (Mr. Justice) resumes his seat. 41 
ChurcH of England in the Colonies, Le- 
gal Statusof. 39 

Code of Civil Procedure 2 

Company, Misrepresentation 22 

Company, Registration of Transfer 96 

Composition Deed, fraud 95 

Contempt of Coini; 29 

Contract for Sale, Rights of Way and 

Water 70 

Contract, diligence 143 

Corporate plaintiff, foreign state 71 

Costs, agreement to share 65 

Court of Appeals 97, 121 

Custody of children .' 20 

Customs Act, cash discount 36 

Damages for Seduction 18 

Damages, quantum of 60 



PAGE 

Deed of Sale 18 

Delivery, proof of quantity 66 

Digest of Law Commission 45 

Diligence 143 

Divorce Suit, Singular 144 

Domicile 14 

Doutre's (Mr. G.) Procedure Civile. .. li>3 

Drummond County 3 

Eloquence, Mr. F. W, Torrance on. . . . 4 

Embezzlement, clerk or servant . . 20 

Enquete System. - 97 ' 

Extradition, forgery 117 

Fact, Baron Martin's protest 105 

Factums, Supplementary in Court of 

Appeals 122 

Fees of English lawyers Ill 

Forgery, stifling a prosecution. . ^ 21 

Forgery, extradition for 117 

Fraudulent representation 23 

Freight, Assignment 71 

Howland Will case 98 

Improvements, right of squatters to 

claim for * 126 

Indian marriages 1 

Indian, marriage with , 14 

Insurance, claim in due form li*8 

Insurance, identification of thing in- 
sured 67 

Interdiction, foUe enchere 118 

Intervention, right of. 83 

Intervention to protect character 64 

Irish Law Appointments 24 

Judicial Decisions in England, bulk of 45 

Judicial pensions 73 

Judge, posture of, while addressing 

jury 103 

Judges in English Courts. 2fe 

Judiciary of United States 23, 42 

Juries, Unanimity of. 75 

Jurisdiction 21 

Landlord's Privilege 121, 144 

Larceny, Indictment 20 

Lawyer in London, An American 101 

Lawyers, Book about 80, 108 

Law Commission in England, Digest of 45 



148 



IS'DEX TO PKINCIPAL MATTERS. 



Page 

Lawyers in House of Commons 24 

.Lawyers, nmnber of, since the cession 

of Canada 25 

Law Reform in England 73 

Lease, transmissible right. . .' 90 

Lease, bonded warehouse 125 

Legal Expenses in England 55 

libel, justifiable writing 61 

Marriage in extremis 136 

Marriage, Indian Territory 14 

Marriage Laws in Upper Canada 49 

Married Woman 22 

Master and Servant 95 

Michaelmas Tenn in England 78 

Mines, lease of land with mines 25 

Municipal Act, Revision of judgments 

under 63 

Negligence, Contractor 88 

Negligence of Pilot. . ^ 37 

Notes of Cases, monthly I 

Nova Scotia Judges 98 

Nuisance, Storage of gunpowder 58 

Nurseries of BandalFs Island 125 

Partner, Liability as 74 

Partnership, business of Solicitor 71 

Patent Laws 122 

Pilot, negligence 37 

Preference, Undue 56 

Principal and Agent 116 

Privileged Communication 61 

Privy Council 99 

Procedure Civile, by G. Doutre 123 

Production of Documents 70 

Proem to Volimie the Third I 

Promissory Note, Power of Attorney . . 67 
Promissory Note, forgery of endorsa- 

tion 130 

Prothonotary's Certificate 17 

Quaker Juror 96 

Queen's Counsel 1 

Quo Warranto 96 

Redfield's (Judge) Letters from London 101 1 

Registration in the Province of Quebec 2 1 

Retainer, action for 85 1 



Page 

Revendication, toll 68 

Revision of Judgments under Munici- 
pal Act 63 

Rules of Practice, Court of Appeal. 99 

Salaries of English Judges 1 ^ 

Salvage 

Salvage of Derelict li* 

Secreting, Undue Preference 5b 

Seduction, damages 18 

Sentence, Increase of. 26 

Serment Suppletoire ^. . . 120 

Set-off, Banker's Lien 94 

Sheriff's Sale, ffighest Bid 120 

Ship and Shipping 116 

Signatures, Resemblance of 99 

Slander, New Trial 93 

Slander, Insufficient Damages 60 

Slander in Magistrate's Court 69 

Solicitor and Client 22 

Squatters 121 

Squatters' Act 126 

Surety, Signification of Transfer 119 

Tableau General des Avocats 4 

Testator, State of Mind of 10 

Three Degrees of Comparison 96 

Title, Compensation 142 

Torrance (Mr. F. W.) on Eloquence. . 4 

Trustee, Bonus to 95 

Turner, Lord Justice 51 

Unanimity of Juries 75 

United States Judges, Corruption of. . 52 

Warrant, Authority of Magistrate 19 

Will, Error in Date 20 

WiU, Olograph Codicil. 10 

Will, *' Survive" 23 

Will, Donation 90 

Will, Dictationx)f 69 

Will, Fraud by Married Woman 22 

Will, Propre Fictif 03 

Will, Falsa Demons tratio 7i> 

Winding up, Contributory 04 

Writs of Error 49 

Writ of Error, Attorney-General 57 



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