DIARY FOR JANUARY.

1. Mon.. Circumcision. County Court Term beg. Heir and Devisee Sittings begin. Master and Registrar in Chancery and Clerks, and Deputy Clerks of Crown to make returns. Taxes to be computed from this date. Municipal Elections.

6. Sat... Epiphany. Christmas vacation in Chancery ends. County Court Term ends.

7. SUN. 1st Sunday after Epiphany.

8. Mon.. Election of Police Trustees in Police Villages. County York Assizes begin.

10. Wed.. Master and Registrar in Chancery to pay over fees to the Provincial Treasurer.

12. Fri... Court of Error and Appeal Sittings. 13. Sat... Treasurers and Chamberlains of Municipalities to make returns to Board of Audit.

14. SUN.. 2nd Sunday aftr Epiphany. 15. Mon.. Municipal Councils (ex-Councils) and Trustees of Police Village to hold first meeting.

16. Tues.. Heir and Devisee Sittings end.

20. Sat.... Articles, &c., to be left with Secretary of Law Society.

21. SUN.. 3rd Sunday after Epiphany.

23. Tues.. First meeting of County Council. 28. SUN.. Septuagesima Sunday.

30. Tues.. Last day Non-Residents to give list of their

lands.

31. Wed.. Last day for City and County Clerk to make yearly returns to the Provincial Secretary. Last day for Councils to return debts, &c.

The Local Courts'

AND

MUNICIPAL GAZETTE.

JANUARY, 1872.

In a recent case in England (Reg. v. Taylor & Smith) the evidence shewed that the two prisoners, with another boy, were seen by a policeman, to sit together on some door-steps near a crowd, and when a well-dressed person came up to see what was going on, one of the prisoners made a sign to the others, and two of them got up and followed the person into the crowd. One of them was seen to lift the tail of the coat of a man, as if to ascertain if there was anything in the pocket, but making no visible attempt to pick the pocket, and to place a hand against the dress of a woman but no actual attempt to insert the hand into the pocket was observed. Then they returned to the door-step and resumed their seats. They repeated this two or three times. There was no proof of any preconcert, other than this proceeding.

The prisoners were indicted for conspiring to commit larceny, and for an attempt to commit larceny. But the court held they could not be convicted of either on this evidence. Doubtless the juveniles were much surprised at escaping so easily.

The last Ontario Gazette states that a commission has issued to the Judges of the Superior Courts of Law and Equity, under 34 Victoria, capter 7 (Ontario), to report to the Legislative Assembly in respect of any Bills, or petitions for Estate Bills, which may be submitted to the House. We trust that this wholesome provision of the Legislature may have the effect of stopping such measures as the Goodhue Bill and other like matters. It is a pity this provision did not come into force before legislation so discreditable in principle had taken place. There is still some hope that it may be disallowed by the Governor General. We should be sorry to see the act ventilated on an appeal to England from our Court of Appeal, if the judgment there should sustain that of the Court of Chancery.

Skilled witnesses are generally great bores. It has been observed that medical men, as a rule, are peculiarly grandiloquent, abounding in resonant technicalitics and scientific monstrosities when placed in the witness-box. We notice that an able medical witness, in an English assize court, lately furnished the opposite counsel with the burden of a telling speech, by informing him that his client's "muscular contractibility responded 'readily to the electro-galvanic influence."

La Revue Critique de Legislatiɔn et de Jurisprudence du Canada.-This review has been highly commended by legal writers in England, as being a very creditable production, in which the subjects are well chosen, and the articles carefully written. In judicial language, we "concur."

By Imperial statute 34-35 Vic. cap. 112, children under fourteen, and without proper guardianship, may, under certain circumstances, be sent by the court to an industrial school.

We understand some such, or rather a more extended act is to be applied for during the next session of the Ontario Parliament, in connection with the Boys' and Girls' Home. It is becoming impossible properly to deal with. vagrant children, so as to cause them to grow up with a prospect of leading useful lives. A compulsory power of detention in charitable institutions seems to be wanted.

An English statute, which came into force last November, provides for criminals being photographed in prison, and for the distribu

tion of such photographs, with a view to facilitate identification, and thereby prevent crime.

1

The English Law Journal, referring to the late case of Johnson v. Emerson & Sparrow, 40 L. J. N. S. Exch. 201, says: "We believe no case will be found in the books, occupying greater space." The length is occasioned by the elaborate judgments upon the question whether or not the defendants were guilty of maliciously procuring the plaintiff to be adjudicated a bankrupt. The court was equally divided. One judgment was withdrawn, and the case goes to the Exchequer Chamber. As to the mere length of the report, we think the Law Journal will find that it is surpassed by the Admiralty case of Banda and Kirwee Booty, L. R. 1 A. & E. 109. The Exchequer case is reported in L. R. 6 Exch. p. 329, and there occupies 74 pages: the Admiralty case was argued by 37 counsel, representing different interests, and fills 160 pages. True, it may be said of this latter case that it is really a consolidation of several cases.

We observe that the Supreme Court of Pennsylvania has suspended an attorney rejoicing in the name "J. Charles Dickens," by reason of his attempting to intoxicate his opponent, in order to take an advantage of him, "until the offence should be thoroughly purged." The unprofessional singularity of the misconduct, and the mysterious duration of the term of punishment, are alike provocative of profound amazement.

FEES TO LAWYERS IN DIVISION
COURTS.

A correspondent recently asked our opinion as the propriety of a small fee being allowed for professional services, as part of the costs of a successful litigant in Division Courts; such fee to be in proportion to the amount in dispute, or the difficulty of the

case.

The arguments and reasons given in the letter alluded to are, as we think, insufficient and beside the question. But though he has not put his case as forcibly as he might have done, we are aware that there is a growing desire to have the assistance of lawyers in these Courts; and it is so on the tenable ground that with competent professional men, who understand and are disposed to do their duty, there may be a saving of time, and con

sequently of expense. When speaking, however, of the saving of time, we allude as well to the preparation of the case before trial as to the mode of conducting it at the trial. If a competent lawyer were consulted, before the case was entered or defence put in, as to the form of the claim or defence, and the evidence necessary to support it, there would be no reason, as a general rule, for those frequent adjournments which are now necessary to prevent injustice, and which take up so much time, and would enable the case to be disposed of on its merits in the first instance

Again, in calling and examining witnesses, much time may be saved by confining them to the very points in issue, and bringing the court at once face to face with the real question in dispute between the parties.

The policy of the Division Court system, however, has hitherto been against any fees being allowed to professional men in Division Court cases; the intention being, we presume, that the costs should be kept at the lowest point consistent with the due administration of justice. Nor must it be lost sight of that these Courts are intended for the dispatch of business in a summary way, and to allow to practitioners in the Division Courts the same latitude that they have in the Superior Courts, would be to impair their value as cheap tribunals to poor suitors for small amounts.

As matters are now arranged, the whole business of each Court is generally concluded in a single day. With lengthy examinations of witnesses, and addresses from lawyers, three or four cases might occupy a whole day, and protract the sittings for three or four days, to the great injury and annoyance of suitors. In any point of view much would depend on practitioners, whether the Court was assisted or not, or whether business was delayed or not, themselves become a nuisance or the reverse.

The employment of counsel in every case is not at all likely to become the custom, and in simple cases would not be beneficial. Professional aid should be encouraged in difficult or complicated cases, and a fee to counsel taxed at the time, within a certain limit, having reference to the nature of the case, and with power to disallow a fee in cases where such a course would seem to the judge just and proper.

It would be a great improvement if the judge had power, in any case of sufficient im

portance, to transfer it at once to the County Court, for more deliberate examination and adjudication. We see there is bill before the legislature pointing in this direction; but if it is altered as proposed, to allow non-professional men to act as advocates, its effect will be vicious in the extreme. Neither the parties nor courts could have any effectual protection with such a class of men, nor would there be any proper control over them. To legalise their employment would be a very dangerous act, and we do not think that the AttorneyGeneral, who will of course pass on such proposed legislation, would lend his sanction to it, or permit such a measure to become law.

SELECTIONS.

BUSINESS IN THE COUNTY COURTS.

the masses.

The business done in the County Courts for the year 1870 still exhibits the stupendous proportions in number and value of causes which mark every ‘undertaking' supported by When we compare the Superior Courts of Common Law and the County Courts we may imagine ourselves to be studying the traffic returns of a great railway. The plaints overtop the writs of summons just as the third class rises above the first class. In 1870 there were 912,298 plaints in the County Courts, and but 72,660 summonses issued in the Superior Courts. The fees in the County Courts amounted to £352,845, the fees in the Superior Courts to £52,593. More than half a million causes were tried and determined in the County Courts, while only about 3,400 causes were entered for trial before juries in the Superior Courts. When we add that in the Superior Courts there is a falling off of at least ten per cent. in general business, as compared with the year 1869, while in the County Courts things were not worse' we fear that we have completed a sad picture for contemplation of the profession. Although the number of plaints issued in the County Courts was somewhat less than in the previous year, yet it is obvious that business is as good as ever, because the amounts for which plaints were entered, and the amount sfor which judgments were awarded, amounts of costs and of fees, are not less than the corresponding amounts in the previous year. We are almost staggered by such figures as £2,644,762, as representing the amounts for which plaints were entered. We are very sorry to see that after the boasted abolition of imprisonment for debt, 26,337 warrants of commitment were issued, and 6,597 debtors were actually sent to prison. Although these figures are not quite so ugly as those for the year 1869, they are very much worse than the figures for 1860.

We need hardly say that this gigantic mass of business was not disposed of without con

siderable labour on the part of the judges and officers of the Courts. The whole numbers of days upon which the Courts sat throughout England and Wales in the year was 8,085, and their Honours got through an average of 64 causes per diem. On Circuit No. 6, the Court, consisting of two judges, sat for 322 days; but a single judge on Circuit 33 sat for 182 days. With his lot we may contrast favourably for the judge the 89 days of circuit of No. 5. On this last circuit his Honour disposed of causes at the speedy rate of 160 per

diem.

The plaintiff in the County Court always wins; at least he wins ninety-six times in every hundred, and what is more remarkable, he gets on the average fifty per cent. of the amount of his demand. These two statistical facts pretty well demonstrate that County Courts are generally employed in the task of debt-collecting, and from them we deduce proof of an enormous system of credit existing among the humbler classes.

The equitable jurisdiction of the County Courts needs but little comment. Its insignificant extent may be judged from the single fact that the total number of equitable proceedings of every sort and kind fell short of 2,000 in the year.-The Law Journal.

SIR EARDLEY WILMOT.

The retirement of Sir John Eardley Wilmot from the judgeship of the Marylebone County Court is an event that calls for comment. No judge was ever more respected, or ever better deserved the respect of the profession of the public. His ability and learning were conspicuous, and he was distinguished for the zealous dischage of his onerous duties. He retires because he is unable to attend to the business of Circuit 43, and the work that overtaxes the strength of Sir Eardley must surely try the powers and endurance of his learned successor.

The Marylebone district comprises a population of upwards of a quarter of a million.

Sir Eardley, supported by memorials from the inhabitants, petitioned for a division of the Court, but the petition was disregarded; we suppose on the score of economy. Then he obtained the assistance of Mr. Abbott as deputy judge for one day in the week, but that course was not approved of; and, as Sir Eardley would not do injustice to the suitors by attempting to do more than his strength permitted, he resigned. We protest against the costly economy of the Government, but there is consolation in the case of Sir Eardley Wilmot. He is lost to the country as a County Court judge, but we apprehend that he will be of greater service as a law reformer, for which his talent, his learning, and his ripe judicial experience peculiarly fit him. His farewell address to the Court shows that he has well considered the subject. He proposes that the plaintiff should in any case have the option of of bringing his action in a County Court, and that when the case involved debt and dama

ges above a certain amount, the defendant should have the power to remove to a Superior Court on giving security for costs. To this proposal we strongly object. When the case is of a certain importance the defendant has a right to a trial before a judge of a Superior Court, and to have a verdict of a superior jury. Because a man is poor, that is no reason why he should put up with a trial in a County Court. Those who go to law must take the risk of the costs being paid in the event of success. Besides, if a man is too poor to pay costs, what is the use of suing him for a large debt or for heavy damages? The next suggestion we hold to be worthy of serious consideration. Sir Eardley proposes that civil and criminal business should be associated in the local Courts, the criminal business being such as is now dealt with by quarter sessions.

We regard it as most important that there should be no delay in the disposal of criminal business. Nothing is so deterrent as swift justice, and the wrongfully accused are entitled to a speedy trial. The next recommendation refers to the of the business in County Courts. Sir Eardley proposes that there shall be fixed days for the actions under £5, and cases above that amount and jury cases to be taken on other days. He remarks that with the present system counsel who attend County Courts frequently have to wait for hours and and then go away unheard. The cases in County Courts are now so important that the aid of counsal is indispensable, and it is monstrous that their time should be wasted whilst the Court is engaged in disposing of a long list of petty actions. Sir Eardley is of opinion that it would be advantageous to occasionally promote a County Court judge to a judgeship at Westminster Hall. Better men, he contends, would accept County Court judgeships if they knew that step was not a bar to further advancement. With this we agree, and for two reasons:-1. We require first-rate men for the County Courts, as in some respects their position is more difficult than that of a puisne judge. In a Superior Court the judge usually has the assistance of counsel, while in the County Court the judge has generally to do without that assistance. first-rate men took County Court judgeships, they would be well qualified for Westminster Hall. We do not mean, of course, that all the judges should be taken from the County Courts, and to carry out the plan there must be a system of promotion in County Court judgeships-id est, meritorious judges should be transferred from less to more important circuits. Sir Eardley says that he left Bristol for the London Court that he might not be debarred taking his small share in legal improvements. We hope, and indeed we are confident, that his retirement from the office of judge will enable him to render greater service in the much needed work of legal reform. -The Law Journal.

2.

If

CARRIERS.

PASSENGERS' LUGGAGE.

Macrow v. G. W. R. Co., Q.B., 19 W. R. 873.

The plaintiff, returning with his household from Canada to England, had among his luggage various articles of bedding, with which he intended to provide his new settlement, wherever it might be. The defendant, by whose line he travelled, lost his goods, and then he sued them for damages; and having on the trial recovered damages, from the calculation of which the bedding was (among other things) excluded, he obtained a rule to increase the damages by the value of the excluding articles.

After hearing the rule argued the Court took time to consider, and at length delivered a judgment in which an attempt is made to settle some general rule by which to determine what is "passengers' luggage." 'Whatjudgment.of the Court," the passenger takes ever," says Cockburn, C.J., delivering the with him for his personal ease or convenience, according to the habits or wants of the particular class to which he belongs, either with reference to the immediate necessities or to the ultimate purpose of the journey, must be considered as personal luggage." Apparel for use or ornament, the sportmans's gun and fishingrod, the artist's easel, and the student's book are mentioned as instances," and other articles of an analogous character, the use of which is personal to the traveller, and the taking of which has arisen from the fact of his journeying.' "On the other hand, the term ordinary luggage, being thus confined to that which is personal to the passenger and carried for his use or convenience, it follows that what is carried for the purpose of business, such as merchandise or the like, or for larger or ulterior purposes, such as articles of furniture or household goods, would not come within the description of ordinary luggage, unless accepted as such by the carrier." It is to be feared that notwithstanding this careful attempt at discrimination the question is not much nearer a settlement than it was before, and the case cannot be safely cited to prove anything except that bedding is not ordinary passengers's luggage. When the term is allowed to include what the passenger carries for ultimate purposes, but not what he carries for ulterior purposes, inasmuch as the superlative is larger than the comparative, it must be assumed that ultimate and ulterior are used with a different reference, and that by the latter term is signified something beyond any purpose, even an ultimate purpose, of the journey. But the ultimate purpose of the journey is something to be done after the journey is accomplished, and is thus distinguished from the necessities of the journey itself, and this is shown by the instances put; in fact, almost everything a passenger ever carries is carried for such purposes. But where these ultimate purposes end, and the purposes which are ulterior to them, and are therefore not purposes of the journey at all, begin, is far from clear.