a committee, all able gentlemen, all better informed than I in this matter, the power to draft an amendment to the Constitution and submit it to the Legislature with the statement that the amendment is one favored by the City Bar Association of New York and the State Bar Association of the State of New York. It seems to me it is a very dangerous power and that it would be wise to amend this resolution by striking out the clause giving to the committee the power to offer amendments.

The President:

This subject will necessarily be laid aside and we will resume the regular order, which is an address upon the procedure in Ontario, by Mr. Justice Riddell of the Court of Kings Bench. (Applause.)

Mr. Justice Riddell, of Toronto:

Mr. President and Gentlemen, Brother Members of the New York State Bar Association, it gives me a very great deal of pleasure indeed to meet you again. May I say, before attacking my subject, that I have been very much interested indeed in the discussion which has just been going on? It illustrates what I have so often said, that the time. of the American lawyer is taken up more by constitutional questions in one day than the time of an Ontario lawyer is in a year. Because you know, if you use the word "Constitution" in the sense in which it is used in these United States, the Constitution of Canada may be described by a parody upon that famous chapter on the Snakes of Ireland. There are no snakes in Ireland." (Laughter.) We have no Constitution in Canada in the sense in which you use the term. The Parliaments in our Dominion, like the Imperial Parliament in England, can

66

within the ambit of their jurisdiction do anything which is not naturally impossible; indeed it is a maxim among our Canadian as among English lawyers that Parliament can do anything except make a man a woman, or a woman a man. (Laughter.)

terror

When I read the announcement that I was to read a paper to this Association I was struck somewhat with and I made up my mind I should at once throw myself upon the mercy of the court and confess immediately that I had no paper. That is due to more than one cause, possibly; in part, perhaps, to the fact that I have my own share of judicial temperament, which, of course, you know is defined by Mr. Dooley somewhat in these words. He says, "Hinnessy, I would like to be a Judge, I have the judicial temperament." Says Hinnessy, "What is the judicial temperament?" Says Dooley, "I don't like work." (Laughter.) But in justice to myself, I cannot say that is the only reason. (Laughter.) One other reason is that we have still in Ontario an absurd superstition that a Justice of His Majesty's Bench ought to do at least some judicial work- occasionally. (Laughter.) I know it is suggested that some of my judicial brethren disregard that superstition to a very great extent

one of them, indeed, when he received Her Majesty's Warrant appointing him one of Her judges, immediately proceeded to sell his library and buy a new gun. (Laughter.) All of us do not have the courage that gentleman had, we are not so greatly daring, and consequently some of us, at least occasionally, do a little judicial work.

In the short time I was at home since I received the invitation to write a paper on this subject, I was exceedingly busy; and since I left home I have been in a continued

series of intellectual debauchery in which there was no morning after the night before" only because the night before extended into and, as it were, absorbed the morning after: and I have not had time to reduce anything to writing. But it may perhaps console you a little bit to know that some years ago I wrote for my friend, Dr. Lawson, the Dean of the Faculty of Law in the University of Missouri, a short article upon the Courts and the Practice in Ontario. I did not know until I came to this city, and indeed not until yesterday, that he had published it; but you will find some of it in the Forty-fourth Volume of the American Law Review, at page 597. If, however, you or your secretary desire I should write a paper so that it may appear upon your minutes, I shall be delighted to do so as soon as I get home and shake off that temperament which I find growing upon me as years go by, and get a little leisure so I can do so.

we

The courts in Ontario are all one court (speaking of the Superior Courts). Before 1881 we had two concurrent Law Courts and a Court of Chancery. In 1881, following the mother country- and the mother country following the State of New York, because of course the State of New York was the pioneer in that regard abolished all the courts then existing in the Province of Ontario, which were the two Common Law Courts, the Court of Chancery and a Court of Appeal; and made one general court, the Supreme Court of Judicature. That we divided in two branches, one the Court of Appeal and the other the High Court of Justice; and the High Court of Justice was divided into three branches or divisions. A fourth Division has since been added to the High Court. A judge can sit in any of these Divisions or in the Court of Appeal; any Judge of the Supreme Court of Judicature may to-day be trying a murder case and to-morrow be sit

ting in the Court of Appeal or Divisional Court; but as a rule the High Court Judge remains in the High Court and does not sit in the Court of Appeal - although he may do so when called upon by the Chief Justice. In our practice there is no distinction between law and equity, and everything is tried in the same court; where the rules of equity and the rules of law do not agree, the rules of equity prevail - we have abolished (following the mother country) the distinction between law and equity in that regard. With the exception of a few cases, few comparatively in number, although of great importance sometimes, every matter which is brought before the Court is brought by Writ. If you want a will interpreted, or anything of that kind where there are no facts to be determined, then you may bring it before the Court by an originating summons or notice of motion. Sometimes counsel get together and state a case and that may be heard before the Court, without Writ. Feigned issues are not allowed with us; neither is there any compulsory submission to arbitration. Outside of such cases as I have mentioned, everything is begun by a writ, and that is so whether it be for damages for slander or upon a promissory note or on a mortgagewhatever anybody wants to sue for is sued for by way of a writ. In this writ the cause of action is set out in the most general terms. The writ is served on a corporation by serving an officer of the corporation, on a lunatic by serving the lunatic or his committee or the person in whose charge he is. It may be served on a married woman; because there is no distinction between married women and other women in that regard in Ontario. On the service of the writ, the defendant is given ten days to appear. One may specially appear simply to dispute the amount of damages. If that is done, then it is referred to a master at once to

determine the amount of damages without further pleading. If there be a general appearance, the practice is different. Some writs may be endorsed specially, as we call it, that is practically what you might call liquidated claims set out on the writ. If an appearance be entered to a specially endorsed writ, an application may be made by the plaintiff, if so advised, to the Master to strike out the appearance and cause judgment to be entered if he can show that there is no defense. That can be shown by affidavit on the part of the plaintiff himself. If the defendant does not answer that, judgment goes against him. He may answer by affidavit, he may be examined under oath before a master on his affidavit, and if it appears there is really no question at all to be tried, and the appearance is simply for the purpose of delay, the appearance is stricken out and judgment entered. If there is a plausible case to be tried, the Courts do not cause the appearance to be struck out. A statement of claim is delivered by the plaintiff, the statement of claim corresponding to the old bill of complaint in equity or to the declaration in the common-law courts. The statement of claim, according to our rules, must set out facts, not conclusions of law. All the facts upon which the plaintiff desires to base any claim must be set out and the statement of claim is divided up into paragraphs for convenience. Now, it may be that the statement of claim does not disclose any cause of action. Demurrers in form are abolished; but we have demurrers in substance. Application may be made to the Court to strike out the statement of claim as disclosing no cause of action; and if that appear, judgment will be entered for defendant by the Court, unless the plaintiff is in position to amend. After the statement of claim has been delivered