The Local Courts'

AND

MUNICIPAL GAZETTE.

OCTOBER, 1872.

TO OUR READERS.

The Local Courts' and Municipal Gazette became a distinct publication from the Upper Canada Law Journal in the year 1865. The reasons for that change were fully given in the first page of the January number of that year. It was there stated that at first a large measure of support came from County and Division Court officers, but that at that time (1865) this had somewhat changed, and professional men and County and Division Court officers stood nearly on a par as to numbers on the subscription list. This change has continued so that now the support of the latter class has become so small as not to warrant the extra expense attendant upon a separate publication, whilst the number of our subscribers amongst the profession has increased in a most satisfactory and encouraging manner. The reason for this change is easily accounted for. In the first place, the business of the Local Courts has greatly fallen off, so that many who could well afford the luxury of a legal paper have been reluctantly compelled (we quote the words of many who have so expressed themselves) to withdraw their subscriptions; and in the second place, officers now-a-days are pretty well versed in their duties, and do not require the same advice and information which it has been our province and our pleasure to give them. We think that for this result we may, without egotism, take some credit to ourselves. We think we have been enabled in many ways to induce a greater uniformity of practice, and to inculcate more sound views of the duties of local officers than obtained before we entered the field.

We do not, however, wish our readers to understand that we do not intend in future to do all in our power to supplement and continue what we have so far accomplished for the benefit of those who were at the first our principal supporters; but a due regard for our own interests compels us, to prevent a loss to ourselves, again to make a change by discontinuing the publication of the Local Courts' Gazette

after the end of this year. We shall, however, reserve full space (and our borders will be enlarged for that purpose) for the discussion of all matters affecting the Local Courts and County and Municipal officers, and we trust to receive the same support from our friends "of that ilk" as formerly. We must, moreover, owing to the increased price of printing and all other expenses, increase our annual subscription to the Law Journal, which we shall send to the present subscribers of the Local Courts' Gazette unless they express a desire to discontinue their subscription.

We thank our many kind friends among the County and Division Court officers for their support, and for many expressions of satisfaction and good-will. We trust they will be able to continue their support and encouragement when the Local Courts' Gazette shall have again merged in the Canada Law Journal.

Our advertising columns announce the publication of a new work by Mr. S. R. Clarke, of Toronto, Barrister-at-Law, on the Criminal Law of Canada, which we have reason to think will be not only a success in itself, but also of immense service to the Profession and Magistracy in the Dominion at large. We have not yet had an opportunity of examining it, but a cursory glance would seem to show that it will prove a most valuable treatise on the criminal law as it applies to this country.

A pretty fair test of the confidence of the public and profession in their Judges is the number of appeals from their decisions. A return to an address of the House of Commons of Canada gives a statement of the number of cases taken before the Privy Council in 1869, 1870 and 1871, from Ontario, Quebec, New Brunswick and Nova Scotia, and the information given is highly suggestive. There have been only two cases actually appealed from Ontario; and though appeal

bonds were filed in two other cases, no further action will probably be taken in them. Quebec has sent no less than twenty-one cases to the Privy Council, six in 1869, five in 1870, and ten in 1871. This points to a pleasant state of uncertainty in the minds of the profession in the Province of Quebec, as to what the law is in a variety of cases, and shews a laudable desire on the part of the litigants "to get to the bottom of it." The

Supreme Court of New Brunswick has, during the same period, granted leave to appeal in six cases; but the courage of those concerned has partly failed them, for only three have been transmitted to England, and no action appears to have been taken in these. Only one case has been appealed during the same three years from Nova Scotia; and the further information is given in the return, that only three cases in all have been taken to England from that Province since 1860, when Sir Wm. Young was appointed Chief Justice of the Supreme Court. It will thus be seen that, taking into consideration the business done in Ontario, the number of appeals is almost nominal as compared with Quebec, and much less than those in the other Provinces. The encouragement given to those who desire to have a final decision is not very great; for, out of all the cases referred to England, judgments have been given in only three of the Quebec appeals, and in none of the others; two of the Quebec judgments having been reversed, and one confirmed.

We lately culled out a few judicial strictures upon the way in which some of the Canadian County Court Judges do their work. We observe from a late judgment of Sir Robt. Phillimore, in an Admiralty appeal, that his spirit has been vexed from a like cause. He mildly called attention to the fact that there were two things which concurred to render it impossible for the court to come to any satisfactory conclusion on the materials before it. First, it appeared that the notes of the evidence were merely rough notes taken by the learned Judge of the County Court of Northumberland for his own guidance, and though no doubt (as he charitably puts it) sufficient for his purpose, yet they could not be regarded as satisfactory for the purpose of an appeal. Second, that he (Sir Robert) was without the assistance which, in of many the kind, he had derived from a statement of

cases

the reasons which influenced the court below in arriving at the decision appealed against. The Busy Bee, 20 W. R. 813. From all which it would appear that there are County Court Judges who are alike all the world over.

A friend lately sent us a West Indian newspaper, which contains the charge of Chief Justice Peel to the Grand Jury at Antigua. It appears that one result of the confederation

of the Leeward Islands, proclaimed on 30th March last, was the extinction of grand juries in that colony. The learned Judge "regrets the cessation of an institution which history tells us has often done good service in the cause of liberty and justice;" and he thus continues: "Its value has been most apparent in troublous times. Often and again, in Eng land's stormy story, in her many fits of political and religious frensy, have Grand Juriesthose of London and Middlesex especiallythwarted the vengeance of an angry monarch, an unscrupulous government, or of a victorious faction, and interposed between them and their intended victim."

LAWYERS IN PARLIAMENT.

The elections for the Dominion House of Parliament being now over, it may not be out of place to see how the legal profession in Ontario is there represented. We find on

looking at the list, that out of the eighty-eight members for Ontario, some twenty are barristers, and of these seven are Queen's counsel. It would be highly uninteresting to discuss the question as to the propriety of having a large number of lawyers in Parliament, and we presume the usual number of “ clap-trap" speeches have been made on that subject whenever a suitable occasion was presented by a member of the legal fraternity being a candidate, without in the slightest degree affecting the result of his election. But it is interesting to note the classification of those who have been elected.

Of course the first on the list is the statesman and great constitutional lawyer, who has for so many years ruled the destinies of this Dominion, but who has during that time been separated from the practice of his profession. The most prominent figures next to the Minister of Justice are, on one side of the House, the veteran and eloquent leader of the Bar in Ontario, the Treasurer of the Law Society, and on the other, one who, though his junior by many years, has in a short period of time, by his high talent and great learning, obtained a reputation at the Equity Bar of this Province which has never been equalled, and who is as well known to the country at large as he is in the profession. Of the rest, however, there are not very many whose names are familiar either on circuit or at Osgoode Hall. This may be to some a matter of surprise, but a little consideration will easily explain the

reason. In fact, we need not recapitulate in our own language what has already been stated publicly by lawyers in Parliament on this subject. Mr. Blake, in one of his speeches, said, when replying to some attack made upon him:

"When I went into public life, I was an active member of a large firm, and had a large and increasing share of the profits, producing to me at that time over £3,100 a year. Now my position is very different, for I have a fixed income from the firm of £1,200 a year only, while I should be receiving over £3,000 if I had remained in private life. I can gain nothing from the increased profits of the firm," &c.

Small encouragement this to ruin one's health in the public service. Even if in receipt of an official income in addition, Mr. Blake's salary would be considerably less than what he would receive from his profession. Of course, professional men who enter public life do not do so (at least we do not care to discuss the standing of those who do, if such there be) for the purpose of increasing their incomes; but those who thus devote themselves to their country, have other ills to bear than the mere loss of incomes. This part of the subject has been amplified by Mr. Harrison, when replying to an address of his constituents asking him again to become a candidate for West Toronto. His observations contain so much sound common sense, and so fully cover the ground, that we reproduce them. He says:

"I cannot longer owe a divided allegiance, part to professional and part to parliamentary duties, * * * and I cannot, after mature deliberation, hesitate as to the choice.

"What is it to be a member of the Parliament of Canada? It is yearly, at a most inconvenient time, to leave one's home, to neglect one's business, to work hard for the public, with the prospect of little or no thanks; to be abused when honestly doing what one's conscience conceives to be for the public interest; to have the worst possible motives imputed; to work day by day

in committees of the House, considering all manner of details; to pass sleepless nights in an un. healthy atmosphere; and so to continue from year to year, and in the end, to be cast aside or elevated to office-and, if so elevated, to live life of great drudgery and respectable poverty.

"What is it to be a member of the Canadian bar? It is to attend to one's business, to be well paid for what one does, to be praised for the honest discharge of duty, to be free from the imputation of unworthy motives, to work when and so often as one pleases, to have one's rest

when rest is needed, to obtain a position worthy of honourable ambition, to retain it so long as one's health and energies will permit, and so to work from year to year in the almost certain hope of independence.

It may be said that these views are selfish. No doubt they are so. But the law of self is a fundamental law of nature. The man who affects to disregard this natural law is as surely pun ished as the man who violates human law. An empty pocket and broken health are too often the penalties of faithfully serving the public, to the neglect of one's immediate interests.

"There are, in almost every constituency, some men who can serve the public with less inconvenience to themselves than others. Men who, by reason of large fortune, are independent of the sheriff, may safely do so. Men who have nothing to lose, and so nothing for the sheriff, may also do so. But the middle man, who has something to lose, and is desirous of increasing that something for the sake of his family, has everything to lose and little to gain. What is the gain? Perhaps after years of toil a position in the Government, a position which enables the malignant to attack with greater malignity, a position which demands of the sufferer unwearied exertions for less pay than the salary of a bank manager or the income of a second-class lawyer. And yet men are found, election after election, to summon caucuses, to attend conventions, to accept nominations, to address public meetings, to be slandered by one political party for enlisting under the banner of the other political party;

to banish themselves from house and home, and yearly to imprison themselves for two or three months at hard labour within the walls of a House of Parliament. It is well that there should be such men. Selfishness is, I admit, a low spring of action; ambition is a more popular

one.

Some men are vain of distinctions. The ability to write M.P. after one's name, or to have the prefix of "Honourable" is, by some, deemed worthy of all the sacrifices which I have detailed. I have counted the cost, and am no longer prepared to continue the sacrifice. If ambition alone were the object of my life I would, perhaps, continue in public life. But one, in flights of ambition, is frequently reminded that humanity needs sustenance, and that other calls, if not so lofty, are not, on that account, to be despised."

We may here en passant quote an observation on the above remarks of Mr. Harrison by Mr. Goldwin Smith, in the Canadian Monthly, when speaking of the demoralizing tendency of political struggles:

"The parting address of Mr. Harrison, of course, afforded a butt for the arrows of small

wit. Yet, amidst the torrent of electioneering trash, it was, perhaps, the one thing worthy of a moment's remembrance. We shall find that it is necessary to make public life tolerable to sense and self-respect, or to pay for their exclusion."

Of course, there are prominent men, leaders of political parties, who will be found ready, though not willing, to sacrifice their own ease and comfort on the call of patriotism or ambition, but these are so few as to form the exception; and whilst we honour these for their patriotism, or pity those for their ambition, we can scarcely wonder that so few of those who have taken a first place at the Bar, think it worth their while to venture on the stormy sea of politics.

SURROGATE COURT ADVERTISEMENTS.

In the palmy days of Chancery practice, administration suits were considered fair game for the profession. One of the English ViceChancellors, who loved his joke, was wont to say when pronouncing judgment on applications of this kind, "Let the usual order go for the destruction of the estate according to due course. But now-a-days, "Nous avons changé tout cela." Yet still a strict eye has to be kept upon all matters pertaining to the estates of deceased persons. Very often there is no one who has a personal interest in keeping down the expenditure connected with the adjustment of such estates.

Our attention has been lately called to a quite unnecessary outlay for disbursements in publishing advertisements of the Surrogate Courts for next-of-kin and the like, prior to grant of administration. Take, for instance, cases arising under the 35th section of the Act, C. S. U. C. cap. 16, where a citation or summons is published pursuant to the 26th Rule of Court. It is true that this rule requires the judge to direct by special order in what papers the citation or summons is to appear by way of advertisement, but neither statute nor rule of court requires that both the order and the citation should be published, as is almost invariably done. There is no propriety in publishing-no necessity to publish the order: all that is accomplished by so doing is to double the length and the expense of the advertisement. The order is intended, not for the information of the persons cited, but for the guidance of the officers of the court and the solicitors in charge of the business.

COMMERCE IN LAND.

In former years, Mr. Cobden was one of the most conspicuous movers in England in agitating for the adoption of a scheme tending to reform the law relating to land, in its possession, enjoyment and disposition, and in matters referring to its title by inheritance or purchase. His views were, that the law should be so changed as to give greater freedom to the alienation of land, so that owners willing to sell, and persons of means willing to buy, should be able to deal together with safety and expedition, and also without undue expenditure in searching and clearing up the title. To this end, he favoured the adoption of the law of primogeniture, and was prepared to advocate the incorporation into English law of certain portions of the French legal code. Since his time, there has been a movement in the same direction going on in England to a greater or less extent. The last manifestation of its progress is to be seen in the proceedings at the Social Science Congress for this year.

Mr. Jacob Waley, one of the conveyancing counsel of the Court of Chancery, read a very comprehensive and able paper concerning the best means for facilitating the transfer and disposition of land,-having special reference, of course, to property in England. He does not deal with the subject of registration of title, which gives Canada an immense advantage in the ease and simplicity, to say nothing of the smallness of expense, with which land can be transferred from owner to owner. But he suggests certain changes in the mechanism of the English system, which are of value here in so far as we have adopted the English law of real property. These details he has grouped under six divisions, as follow:

"I. It will hardly be questioned that the length of time allowed by law for the assertion of dormant claims largely contributes to the expense and difficulty of the preliminary investigation to which the title to land is subjected upon transfer. Now, the length of time which ought to operate as a bar to an unasserted title must, of course, differ according to circumstances. When the law is not easily accessible or put in motion, when communications are imperfect and intelligence travels slowly, so that opportunities are given to the powerful and the crafty to wrest the devolution and ownership of land out of its lawful course, a longer time must obviously be allowed for the assertion and restoration of displaced titles. No one, probably, has ever perused our older law books, from Littleton downwards, with

out noticing the great space and importance possession of the rightful owner of land, and given to the subject of disseisin or forcible disinferring the comparative lawlessness of the times when disseisin was regarded as among the ordinary contingencies of landed property. At present a possession, adverse to the true legal title, has very rarely any other foundation than accident; and when a misconception of this kind has once occurred, it is rarely brought to light otherwise than by accident. Such windfalls of fortune it seems consistent with a sound jurisprudence rather to discourage than to promote. Even under the old law, a fine followed by non-claim for five years operated in most cases as a conclusive bar; and it appears to me that in the circumstances of modern society, a period of five years, instead of the twenty now given by the Statute of Limitations of the 3 & 4 Will. IV., would be quite sufficient to allow for the assertion of dormant or displaced rights, with the addition, say, of ten years more in cases of infancy and absence.

It

"II. Under the present Statute of Limitations of 3 & 4 Will. IV., an adverse possession gained by time against a tenant for life is inoperative against his successors in interest, each of whoi gets a new period of twenty years from the time at which his own interest would commence. has been suggested, and in that suggestion I concur, that adverse possession should operate against the estate-that is to say, not merely against the limited owner, during the currency of whose interest the adverse possession takes place, but against the whole series of owners having successive interests, who for this purpose should be considered as represented by the owner entitled to the possession and barred by the nonassertion of his rights.

"A proposal to the above effect was, I believe, contained in a bill unsuccessfully promoted some years since by Lord St. Leonards. It may appear unjust that the laches of the tenant for life should bar the remainderman, but I think that the injustice is apparent only, the impression being due to our technical conceptions as to the ownership of land. If the limited owner, instead of being called tenant for life, were regarded as owner of the estate, but with a limited power of alienation, there would be nothing repugnant in the estate being bound by his luches. Besides, the case of land being recovered by the remainderman after the tenant for life has been barred by adverse possession, is so rare as to render it inexpedient that it should be the subject of special legislative provision. In ea quæ frequentius accidunt subveniunt jura. It must be admitted that both the changes here contended for, namely, a shortening of the period of limitation and the operation upon the estate of adverse possession as against