We ventured to express an opinion in a former article, 8 C. L. J., N. S., 207, that, upon the construction of the 44th section of the Common Law Procedure Act, the courts of this Province would probably follow the decisions in the English Queen's Bench, particularly that of Cherry v. Thompson, in preference to those of the other courts. We notice that this has been done in McGiverin v. James: 33 U. C. Q. B. 203, where the Chief Justice observes: "I think we should follow the decision of Cherry v. Thompson, L. R. 7 Q. B., 573, as the most reasonable view to take of the intention of the Legislature in passing the Act, and as being in accordance with decided cases in our own Courts under similar provisions (i. e., as touching the import of the words " cause of action")."

We happen to have by us a scrap cut from the Law Times which, though rather old in point of date, is not inappropriate to some few of the county judges on this side of the Atlantic. The superior courts here have occasionally had to remark upon the inconveniences and evils resulting from the practice which is objected to in the following:

"The Judge of the City of London Court is setting a very mischievous example to County Court Judges in refusing to state his reasons when his decision is to be appealed against. If it were likely to be followed we should take some pains to show the unfortunate effect which such a course is calculated to have upon the proceedings in the Court of Appeal. But apart from all questions of expediency, an inferior court declining to state the grounds of its decisions, seems to be a confession of timidity and incapacity. We trust that the observations of the Judge to the Admiralty Court will cause the learned Judge of the latter court to

meaning of the language of testators who had no clear idea themselves of what they meant. In Re Stevens' Trusts, L. R. 15 Eq., 110, the judge observes, "this is one of those cases which certainly call, for the enactment of a code, or of some rule for the interpretation of expressions to be found in wills." Some of the older judges had a more summary way of solving the difficulties of testamentary cases. On one occasion counsel said to Sir Richard Arden, Lord Alvanley, when Master of the Rolls, that it was the duty of the court to find out the meaning of the testator. "My duty, sir, to find out his meaning!" exclaimed his Lordship. "Suppose the will had contained only these words, Fustum fumidos tantaraboo. Am I to find out the meaning of his gibberish?" But seriously it is much to be desired that some plan were hit upon by the legislature to compel people under penalty of being declared to die intestate, to display some evidence of rationality and intelligibility in the final disposition of their property, and also to lessen the chaos of conflicting decisions upon the interpretation of wills.

LAW SOCIETY-MICHAELMAS TERM, 1873.

The examination of students this Term has scarcely reached the average standard of proficiency--though many of them did. very well. Of the eleven candidates who presented themselves for call, six were passed, none, however, receiving the number of marks (three-fourths) required for pass without oral, though the first on the list were very near it; that compliment, however, was paid to them in consideration of their having previous

judgments.”

Vice-Chancellor Bacon has given expression to the long-suffering endurance of judges condemned to ascertain the

and solicitors. The following is the order in which they passed: R. C. Clute, M. D. Fraser, J. B. McArthur, N. F. Hagle, R. E. Kingsford, C. O. Ermatinger.

Of the attorneys, four passed without

an oral M. D. Fraser, G. B. Gordon, (both of whom were very creditably near the maximum) H. M. Deroche and C. E. Barber. Five others did a fair amount of pass work, E. H. D. Hall being only a few marks short of the required threefourths.

For the first intermediate examination twenty-eight presented themselves; of these, eight obtained over three-fourths of the maximum of 300 marks; twelve did enough to pass, and eight were rejected. The names of the first eight are in order as follows: McColl, McConkey, Holman, Killam, Hodgkin, Locke. In the second intermediate, ten obtained over three-fourths of the maximum, their names being, in order of merit: O'Brien, Coyne, Watt, Baines, Parks, Watson, Greig, H. Lennox, Wells, J. T. Lennox. Fourteen did enough to pass and two were rejected.

The Scholarship examinations resulted as follows:-First year. Frank Pepler,

254 marks out of a maximum of 320. For three consecutive years Mr. Pepler has obtained scholarships, on each occasion passing an excellent examination. No other candidate came up to the maximum. Second year :-A. J. McColl, 277 marks; J. W. Gordon, 260 marks; W. MacWhinney, 253 marks; maximum 320. First year:-W. E. Thompson, 276 marks; maximum 320. No other candidate reached the maximum.

The Benchers have lately been busily engaged in the re-arrangement of the old and the preparation of some new Rules, for the management of the affairs of the Society.

An important change is made in the Convocation of Benchers by providing for meetings out of Term, on the last Tuesdays in June and December. A difficulty has been experienced in getting business done in Term time; most of the Benchers being, at that time, busily engaged with Court motions of pressing importance. A few hours of uninterrupted and con

centrated work in vacation will see more business accomplished than days of distraction and divided attention during Term.

In the Rules under the head "Examination of Candidates," it is now provided that notice of the intention of every person to apply for admission as a student or articled clerk, must be delivered to the Secretary at least six weeks before the Term in which he seeks admission. It has also been provided that the Secretary shall make out two lists containing the names, addresses, and family residence of all the candidates, which are to be posted in his office and in Convocation Chambers. There are also some new rules as to the mode of examination of candidates, which need not be referred to at length.

These Rules will shortly be published in pamphlet form.

THE ADMINISTRATION OF JUSTICE ACT OF 1873.

There is recorded a notable dictum of the first Law Redesdale to the effect that the separation of law and equity has produced a purity in the administration of justice which could not be effected by other means. Of late years, however, in England and Canada, the current of legislative action has set in an entirely opposite direction. This has been chiefly evidenced by partial transfers of equitable jurisdiction to Common law courts, and has culminated in the English Judicature Act of 1873, and the Ontario Act which is placed at the head of this paper. of these acts are in truth designed to accomplish, though in different ways, that great desideratum, which is popularly spoken of as "the fusion of law and equity." What is really meant by this phrase is that a suitor who has any rights, legal or equitable, against his opponent may assert those rights in the court with the certainty of getting an adjudication

Both

upon the merits, and that the court once seized of a cause, whether legal or equitable, shall be able to work the matter litigated to its ultimate issues, and to administer appropriate relief to all parties therein. The observation of Horne Tooke upon the charge of Mr. Justice Ashurst is well known. "The law," said that ponderous dignitary in his remarks to the jury, the law is open to all men, to the poor as well as to the rich." "And so," interpolated the wit, "is the London Tavern." But in many cases the mischief was that the guest in the tavern was better off than the suitor in the courts: the former only paid for what he ordered; the latter, although he failed to get what he sought, had nevertheless to foot the inevitable bills of costs.

The intention of the English Act is to dispose effectually of all civil causes by relegating them at the outset to the appropriate chamber of the Supreme Court. The intention of the Provincial act is to give like relief by transferring (if necessary) the cause at a certain stage to the appropriate forum. We are not sure but that in practice the Ontario Act will be found to work as well as, if not more satisfactorily, than the Imperial Act. The existing state of affairs is less disturbed by the Provincial act, which makes the courts of law and equity to be, as far as possible, auxiliary to one another.

The prominent features of our own Act, to which at present we propose to call attention, are in regard to the changes introduced in equitable pleading, and the great scope which is given to the presiding judge in allowing amendments.

to amend or not, and it was further provided that "all such amendments as may "be necessary for the purpose of deter"mining in the existing suit, the real "question in controversay between the "parties, shall be made." By virtue of this section, courts of common law actually outstripped courts of equity in granting amendments, so that we find Chancery judges adverting to this section as a reason for extending their practice in the same direction. Thus in McGregor v. Boulton 12 Gr. 293, the Court says the inclination is now to allow amendments as fully as is done at Nisi Prius under the Common Law Procedure Act. See also Frazer v. Rodney 11 Gr. 426.

In the act under consideration, the sections relating to amendments are the 8th, 49th and 50th. The eighth section gives full power to deal with the question of parties, and in this respect does not add to the powers which courts of equity have always exercised, but is intended. rather to enlarge the jurisdiction of the Common law courts in this direction. By this section, parties may be added to or struck out of the record; parties plaintiff may be treated as defendants and vice versa, and in all such matters the court of law is to dispose of the same as fully as a court of equity could do.

In regard to an objection for want of parties, the practice in equity is as follows: If the defect appears on the plaintiff's pleading, the defendant may demur on that ground, and, if successful, the demurrer will be allowed with costs. If the objection is not apparent on the face of the plaintiff's pleading, the defendant may raise the objection by his answer, (indicating by name or otherwise the parties who should be added), and if at the hearing the objection is found to prevail, the court will order the cause to stand over, in order that the record may be amended by the addition of parties, and will give the defendant the costs of

the day: Totten v. Douglas, 15 Gr. 128, 133. If the objection is not taken by the answer, the court will usually give no costs of the day to either side, although it may order the cause to stand over, that the parties may be added.

By the 49th and 50th sections, no formal objection is to defeat any proceeding, but the court is to make such amendments as shall secure the giving of judgment, according to the very right and justice of the case. The court may also, of its own motion, direct all such amendments to be made as may seem necessary for the advancement of justice, the prevention and redress of fraud, the determining of the rights and interests of the parties, and of the real question in controversy between them.

Next in regard to equitable pleadings. The amendments of the law are mainly two-fold:-In enlarging the scope of equitable defences in personal actions; and in extending the right to plead equitably to actions of ejectment. We may here draw attention to some observations on the subject of equitable pleading in the last volume of this journal (vol. viii. p. 131), copied from the Law Magazine. The case of Shier v. Shier, 22 C.P. 147, is also instructive upon the point as to the limits within which it was allowed to plead equitably at that time. In that case, Mr. Justice Gwynne, in a very able judgment, in which he dissented from the majority of the court, observed, "It is, I think, much to be regretted, that the courts of law have, as I think they have, taken too limited a view of what the intention of the Legislature was in allowing equitable defences to be pleaded to actions at Common law." In the present Act, the Legislature have interposed to relieve the courts from their self-imposed limitations in regard to equitable pleading. It is now expressly provided, by section 3, that the pleader at Common law may set up facts which

entitle him to relief upon equitable grounds, although such facts may not entitle the party to an absolute, perpetual and unconditional injunction in a court of equity, and although the opposite party may be entitled to some substantive relief as against the party setting up such facts.

The provisions of the Act with respect to equitable defences in ejectment are a step in the right direction. The Judicature Commissioners of 1871 in England recommended that there should be an extension of the right to plead equitably to actions of ejectment. Soon after the passage of the Common Law Procedure Act of 1854, whereby equitable pleas at law were first introduced, the question. arose as to how this affected actions of ejectment. In Neuve v. Avery, 16 C. B. 328, the defendant set up a defence on equitable grounds, to which the plaintiff demurred, for that equitable pleas were altogether inadmissible in such actions. The Court held that an equitable defence was not available in an action of ejectment, and this was put mainly upon the ground that there could be no "plea" in ejectment; and as no legal defence could be pleaded, à fortiori no equitable defence could be spread upon the record. They held also that the proper way of getting rid of such defence was not by demurrer, but by a summary application. to strike it out.

It is noticeable that in the report of Neave v. Avery, in 3 Com. L. Rep., p. 914, Mr. Justice Crowder is reported as saying, during the argument, in reference to section 83 of the Act allowing defences on equitable grounds: "The expression in the clause is any cause;' that is as general as possible, and my present impression is, that the action of ejectment comes within it."

However, the decision of the court in this case defined the rule of practice upon the statute, and has been

observed in the Courts of this Province. Sections 4 to 7 of the present bill cut away the technical ground upon which the decision in Neave v. Avery rests, and give affirmatively the right to set forth by way of equitable plea the facts which entitle the defendant on equitable grounds to retain the possession, and they give the plaintiff the right to reply thereto on equitable grounds,—and as a consequence the right to demur to such defence and replication is also given in express terms.

In Ireland, the course of practice has been quite opposed to the rule laid down. in Neave v. Avery. There it was held that as the defendant could set up a legal defence by way of plea in ejectment, he might do the same in respect of an equitable defence by virtue of the provisious able defence by virtue of the provisions

of the Common Law Procedure Act of 1856, applicable to Ireland: Turner v. McAuley, 6 Ir. Com. Law Rep., 245 (1856). It was also held in the same case that the proper way of raising objections to the validity of such plea was by demurrer. Since then equitable defences have been pleaded in Ireland in actions of ejectment, with such restrictions only as the judges (following the English authorities) have chosen to impose upon themselves in requiring the facts to be such that an absolute and unconditional injunction might be obtained thereon in a Court of Equity: Cochrane v. Camack, 7 Ir. Com. Law Rep., 10; Deering v. Lawler, ib. 333. As we have above remarked, the provisions of the present Act release the Courts from their self-imposed fetters in this respect, and restore them to that freedom of action which we are persuaded was intended when the legislature first gave the right to plead equitable defences in common law suits.

It is, of course, to be observed that there may be cases of equitable pleas and replications in ejectment which could be

.

objected to under the 119th section of the Common Law Procedure Act (C. S. U. C., cap. 22), as tending to embarrass or delay. The application under this section is not by way of demurrer, but upon motion to have the objectionable plea reformed or set aside. A similar practice obtains in Ireland as to these equitable pleas: Clarke v. Reilly, Ir. R., 2 C. L., 422.

ADMINISTRATION OF JUSTICE

IN TORONTO.

There has been a rather remarkable block in the civil business at the recent Assizes for the County of York. The Court sat for one month, during which period some forty indictments were tried, twenty-eight civil causes disposed of, and eighty-two records made remanets.

It is difficult to estimate the annoyance, inconvenience, loss of time, loss of money and possible loss of property which is represented by this delay in business; it must necessarily be very great.

The difficulty is not, however, likely to occur again, at least for some time to come. The wisdom of some of the provisions of the Act for the administration of justice which affect this question are now fully apparent. The additional sittings of the County Court and General Sessions of the Peace in the County of York will dispose of much of the business which would otherwise (as has been the case this year) come before the Judge of Assize. The same remark is applicable, though to a limited extent, to the additional assize provided for the County of York between Easter Term and the first of July-we say to a limited extent-for the time during which that Court can sit will generally be very short. This Assize is also subject to the great objection of sitting at a period of the year during which it