involve little or no disturbance to settle titles or vested rights of ownership. And, finally, that the argument of long standing, which is the whole and only ground of acquiescence in its authority by modern judges, ought, in view of these facts, to avail nothing; as an admitted error should receive no greater tolerance, merely because it is venerable. We have already noticed one of kindred origin and equal age, which the better sense of a later day has corrected ;* and we may refer, among many other examples, to the well known instance in Semayne's Case,† where the proposition that illegality of an officer's entry did not affect the validity of his service of process was enunciated by Lord Coke, founded on the high authority of Littleton a century before ; and received the recognition of the most approved text-writers at a later day.§ Yet this has since been entirely reversed.|| and the contrary doctrine is the settled rule of modern law. Why should not Dumpor's Case receive the like measure from even-handed justice?

COMMUNICATIONS BETWEN

SOLICITOR AND CLIENT.

There have been some fluctuations of judicial opinion as to the extent to which communications between solicitor and client are privileged from disclosure. It has, indeed, long been settled, and was pointed out by Wisram, V. C., in Walsingham v. Goodricke, 3 Hare, 124, that communications between solicitor and client, made pending litigation, and with reference to such litigation; or made before litigation, but in contemplation of and with reference to litigation which was expected and afterwards arose; or made after the dispute between the parties followed by litigation, but not in contemplation of or with reference to such litigation, are privileged from disclosure, whether the party interrogated be the solicitor or the client. It has also been settled that professional communications between a party and his professional

Ante, pp. 627, 628.

+ 5 Co. 93.

18 Edw. 4, fo. 4.

§ Bac. Abr. Sheriff, n. 3, &c.

Ilsley v. Nichols, 12 Pick. 270.

¶ 1 Smith, Lead. Cas. (5th Am. ed.) 194, and cases cited.

adviser, although they do not relate to any litigation either commenced or anticipated, are privileged where the solicitor is the party interrogated.

It has, however, been a matter of doubt whether the rule extends beyond the last case, and embraces such communications where the client, and not the solicitor, is interrogated. Some of the cases seem to imply that the privilege of the solicitor is more extensive than the privilege of the client, and that communications might pass between a solicitor and client as to which the solicitor, if called upon to give evidence, might refuse to answer, while the client could not; although if the communications had been made ofter a dispute arose the client also might refuse. Well might Vice-Chancellor Knight-Bruce remark (Pearse v. Pearse, 1 De G. & Sm. 27):-"What for the purpose of discovery is the distinction in point of reason or principle between such csmmunications and those which differ from them only in this, that they precede instead of following the actual arising, not of a cause of dispute, but of a dispute, I have never hitherto been able to perceive." Anomalies of this kind are often the precursors of a broader rule in which arbitrary distinctions are merged, and the decision in Minet v. Morgan, 21 W. R. 467, L. R. 8 Ch. 361, has a length finally established the law on a footing accordant with common sense and general convenience.

This case was a suit by a commoner against the lord, to establish rights of common claimed by the plaintiff and others. The plaintiff was required by the defendant to make an affidavit as to documents. Accordingly, he admitted the possession of correspondence between himself and the solicitors of his family, or between himself and his solicitors in the suit, written in contemplation or in the course of the suit, or with reference to the subject-matter in dispute, and of letters between his mother, from whom he derived title, and her solicitors, with reference to questions connected with the matters in dispute in the cause; but he stated that all these documents were of a private and confidential character, and that he believed them to be privileged, and therefore objected to produce them. The defendant took out a summons to compel productions of these documents,.

which was heard on appeal by Lord Selborne, C., and Mellish, L.J.

The judgment of Lord Selborne, in which Mellish, L.J., concurred, traces the development of the rule as to the compulsory disclosure of communications between solicitor and client, and shows the successive steps by which the law has reached a broad and reasonable footing. In Bolton v. Corporation of Liverpool, 1 My & K. 88, Hughes v. Biddulph, 4 Russ. 190, and some other cases about the same date, the doctrine of protection was expressed in terms which had a ten dency to narrow its scope. But in these cases a decision on the general question was not required; and the subsequent case of Pearse v. Pearse, 1 De G. & Sm. 12, clearly showed that the tide had turned. The case of Minet v. Morgan, coming at the end of a series of authorities tending in the same direction, seems to place beyond question the doctrine that whether the solicitor or the client be the party interrogated it is sufficient for the protection of communications between the party or his predecessor in tittle and his solicitor acting in a professional capacity, and that it is not necessary that they should be made either during or relating to an actual or even an expected litigation. Thus a simple principle has superseded a number of partial rules and arbitrary distinctions.-Solicitors' Journal.

SUING UPON AN ADVERTISEMENT OF AN AUCTION.

A novel attempt was made in Harris v. Nickerson, 21 W. R. 635, L. R. 8 Q. B. 286, to fix an auctioneer with liability for withdrawing from a sale certain goods which had been included in the advertisement. It is difficult to see how the plaintiff in that case could have possibly recovered damages, for he had bought other things at the sale, so that the expenses of attending the sale, in respect of which he claimed, were not incurred solely for the sake of the articles withdrawn. But on principle the action was really without grounds. To support it it must have been held that an auctioneer, by advertising goods for sale contracts with any one and every one who comes to the sale to sell them. To have held so would certainly have been inconsistent in principle with Spencer v. Harding, 19 W. R. 48, L. R. 5 C. P. 561, where the

defendant who had offered goods for sale by tender was held not to have contracted with the highest bidder to sell to him. In the case of Harris v. Nickerson, however, there was even less to bring the plaintiff into privity with the defendant than in Spencer v. Harding, for in the last named case the plaintiff had at least made a bid, and so had brought himself into a position of apparent analogy with that of a person who furnishes information in answer to an advertisement offering a reward, as in Williams v. Carwardine, 4 B. & Ad. 621, and Tarner v. Walker, 14 W. R. 793, L. R. 2 Q. B. 301. Apparent analogy, we say, because there were wanting in Spencer v. Harding any such words of promise as are contained in these advertisements. Nor are there ever any such words of promise in an auctioneer's advertisement. The case was argued, however, on the authority of Warlow v. Harrison, 7 W. R. 133, 1 E. & E. 295; but there again, the goods had actually been put up for sale and the plaintiff had made a bid-in fact, he was the highest bidder; and if only it could be held that actually putting up the goods for sale and taking bids created an implied contract to sell to the highest bidder, that contract had been made, and the plaintiff was in the same position as the person who answers advertisement offering a reward. It is very difficult to say that Warlow v. Harrison (if it is good law) does not establish that under such circumstances a contract may be implied. Blackburn J., indeed, distinguished that case from Harris v. Nickerson, on the ground that there the sale was advertised as "without reserve.' This amounted to a representation that the auctioneer was instructed to sell "without reserve," and if that representation was fraudulent (of which the buying in would be good evidence, as the employment of a puffer at a sale by auction is evidence of fraud: Green v. Baverstock, 14 C. B. N. S. 204, 11 W. R. C. L. Dig. 12), the auctioneer would no doubt be liable. But in Warlow v. Harrison the auctioneer was sued in contract, and it is difficult to see how an advertisement that there will be a sale without reserve can make a contract, if an advertisement that there will be a sale does not. The distinction seems to be rather that which we have pointed out, namely, that in War

an

lov v. Harrison the goods were actually put up for sale and bids taken, in which case ordinarily there could be no contract to sell implied, because of the well understood customary power of the auctioneer to buy in; but there was room for implying it from the use of the words "without reserve." In another view, indeed, the absence of these words is of weight, because without them, even if the auctioneer had put up the goods for sale, he might, consistently with Warlow v. Harrison, have bought them in, and so defeated the buyer's expectations; which would make it impossible for the buyer to prove he had sustained any damage by his not putting them up. But, except indirectly, this does not touch. the question of whether the advertisement made a contract with every one who came to the sale. Until Warlow v. Harrison is over-ruled (and some doubt was thrown upon the decision in the recent case) it must be considered that where goods are actually put up "without reserve," and bid for, the auctioneer is bound to knock them down to the high'est bidder; but there is no reason for carrying the doctrine one step further, and the cases of Harris v. Nickerson and Spencer v. Harding must put an end to the fantastic idea of suing upon an advertisement of an auction.

We may observe that it is pointed out in a note to Frost v. Knight, L. R. 5 Ex. 337, that in some systems of law a remedy seems under some circumstances to be given to one to whom an offer is made, which is retracted before he accepts it; but there is no trace of any such right being allowed by the English law, nor does the mischief which such a rule seems designed to remedy appear to be equal to the inconvenience which it would cause.-Solicitors' Journal.

Lord Selborne's ideas upon the subject of trial by jury may be gathered from what fell from him in the Patent Marine Inventions Company v. Chadburn (see Notes of the Week). An application was made to his Lordship to have issues in a patent cause relating to novelty and infringement tried by a jury. Indirecting that the trial should take place before the Judge without a jury, Lord Selborne said that the Judge could keep the evidence better under control when

sitting alone, and that upon any questions of science the Judge was as competent as a jury to form an opinion. If trial by jury is to be judged upon such grounds, it will speedily decay. In every case, probably, a judge, by keeping all the evidence in his own head, would keep it better in hand than if it had to be submitted to a jury, and probably in a vast number of cases the opinion of one man is as good as that of twelve. The question is, whether, in important causes involving evidence which may have a different effect upon different minds, it is not expedient that the tribunal to decide them should comprise a jury.-Law Journal.

CANADA REPORTS.

ONTARIO.

NOTES OF RECENT DECISIONS.

COMMON PLEAS.

EASTER TERM, 1873.

MCGUIRE V. MCGUIRE.

Married Woman-Right to maintain trover against husband for goods possessed by her before marriage— Consol. Stat. U. C. ch. 73, & 35 Vict. ch. 16-Construction of.

Held, that a married woman who, without any just cause, leaves her husband's house and lives apart from him, cannot in virtue of Consol. Stat. U. C. ch. 73, in connection with 35 Viet, ch. 16, bring an action against him as for the wrongful conversion by him of certain goods, chattels,. and household furniture, which hoving been the property of the wife before marriage, came into the actual possession of the husband upon and in virtue of the marriage, and were used by husband and wife jointly subsequently to the marriage at the dwelling house of the husband, until she chose to separate herself and live apart from him, by reason that upon her demand, after her departure from his house, he refused to give her up the goods to take away with her.

FEAVER V. MONTREAL TELEGRAPH COMPANY. Telegraph Companies-Failure to transmit message— To whom liable-Contract.

One F., at Hamilton, delivered to the defendants a message to be transmitted to plaintiff, at Wakefield, Mass., paying for the transmission. The defendants having failed to deliver the same to the plaintiff, he brought an action against them for damage caused thereby.

Held, following Playford v. United Kingdom Electric Telegraph Co., L. R. 4 Q. B. 706, that the defendants' liability arose only from contract; that as the message was sent by F. on his own account, and not on behalf of the plaintiff, there was no privity' between the plaintiff and the defendants, and the plaintiff could not maintain an action against the defendants for their negligence.

ROBINSON V. SHISTEL.

Services performed in expectation of marriage. Held, that services rendered for a person in expectation of marriage do not afford the ground of an action, as upon an implied assumpsit to pay in money.

AHRENS V. MCGILLIGAT, (GRAND TRUNK

RAILWAY COMPANY, GARNISHEES.) Railway Companies-" Live and carry on business” at head office-Jurisdiction of Division Court-32 Vict ch. 23, sec. 7, 0.-Construction of.

Held, that a Railway Company does not "live and carry on business," within the meaning of 32 Vict. ch. 23, sec. 7, O. at any other place than at its head office, at which its business is managed. Where the garnishees had their principal station at Montreal, and a local station at Berlin at which they took passengers and received goods, and a cause of action having arisen against the defendant, the plaintiff issued a garnishee summons against the company out of the said Division Court at Berlin, on the ground that they lived and carried on business there. Held, that the judge of the Division Court had no jurisdiction to try the cause.

VARS V. THE GRAND TRUNK RAILWAY Co. Railway Companies-Placing hand-car on highway—

Liability.

Some men in defendants' employment, who had been using a hand-car for laying down rails, approached the Colborne Station on their return home, about 5 p. m., and finding the railway track occupied by a train, stopped at a highway crossing, about 400 yards from the station. They removed the car from the rails and placed it on the highway, the car encroaching some 6 or 10 inches on the road-way The men then left it, remaining away about half an hour. Two men seeing the car seated themselves upon it. At this time the plaintiff drove past in his carriage, and his horse shying at the car, ran away, threw plaintiff out, and severely injured him.

Held, that the placing of the car on the highway constituted negligence, for which the defendants were responsible.

[Com. Pleas.

THE PRESIDENT, DIRECTORS AND COMPANY OF THE BRONTE HARBOUR V. WHITE. Harbour Company-Express power to distrain-Right to maintain action in addition-3 Vict. ch. 33-Construction of.

By 3 Vict. ch. 33, the plaintiffs were incorporated under the name of the President, Directors and Company of the Bronte Harbour, and were declared to be capable by such name of contracting and being contracted with, suing and being sued, pleading and being impleaded in all courts in all manner of suits, actions, complaints. matters, and causes whatsoever. By the 2nd sec. they were authorized to construct a harbour and by the 7th sec. it was further enacted, that if any person should neglect or refuse to pay the tolls or dues, which by the Act were vested in the plaintiffs as their property, the plaintiffs might distrain the goods on which the tolls or dues were due and payable, until such tolls should be paid.

Held, that the plaintiffs were not confined to the remedy by way of distress; but could also maintain an action.

ZEALAND V. DEWHURST.

Husband and wife-Goods supplied to wife not living with husband,-Liability of husband.'

In an action against a husband for goods supplied to his wife, it appealed that up to February, 1872, when the husband received an appointment worth $1,200, he had been in embarrassed circumstances, and owed debts amounting to $3,000. In May, 1870, his wife being in delicate health went to live with her father at Brantford, and continued to reside with him for two years with the exception of an occasional visit to her husband, who lived in St. Catharines, during which time the father expended on her and her son upwards of $1,00. In May, 1872, when visiting her husband she complained for the first time of wanting clothes, her husband appearing to have always furnished her with money and clothes whenever she asked for them, and also to have paid for the son's board and clothes; the husband then gave her what articles she required and what money he possessed, at the same time expressly telling her not to incur any debts in Brantford. It appeared, however, that in the following month she incurred the debt now sued for, consisting of silks, valuable laces. and shawls, amounting to the husband's salary for the quarter, the plaintiff at the time being fully aware that she was living, not with her husband, but with her father.

Held, that the husband was not liable.

Chan. Cham.]

CHANCERY CHAMBERS.

CLARISS V. ELLIS.

Order 113.-Decree nisi-Effect of proceeding under. [The REFEREE -October 1, 1873.] Proceedings under a decree which is not absolute, are invalid.

The purchaser at a sale under such a decree was refused a vesting order, though offering to waive all objections to the proceedings, it being considered that it was only the defendants who could waive such an objection.

CAMERON V. EAGER.

Abatement by bankruptcy of a plaintiff-Costs.

[The REFEREE-October 2d, 1873.

The bankruptcy of a sole plaintiff causes an abatement of the suit.

A motion by a defendant to dismiss after such abatement and before revivor was refused; his proper course being to call upon the assignee of the plaintiff in insolvency to revive within a limited time.

The plaintiff, the insolvent, was awarded his costs of the application to dismiss.

ABEL V. HILTS.

Motion for production or committal upon defaultNotice required.

[The REFEREE-October 21, 1873.] A motion for production, with the alternative that the party be committed in default, being substantially a motion to commit, requires four clear days' notice.

DE BLAQUIERE V. ARMSTRONG. ARMSTRONG v. DEEDES. Consolidation of suits, effect of-Motion for leave to appeal.

[The REFEREE-October 25, 1873.] By a decree made in De Bluquiere v. Armstrong it was ordered that that suit be consolidated with a suit of Armstrong v. Deedes. One of the parties had a different solicitor in each suit. Held, that subsequent proceedings must be carried on in the suit in which the decree was made, and that the solicitor in that suit was the proper solicitor to be served with notice of further proceedings, and not the solicitor in the suit of Armstrong v. Dcedes; the consolidation being held to constitute a stay of proceedings in that suit. On a motion for leave to appeal after the lapse of the time limited for that purpose, reasonable and probable grounds must be shown by the affidavits. It is not sufficient merely to state the grounds of the proposed appeal in the notice of motion,

HAMELYN V. WHITE.

Vacating order pro-confesso-Defences which may be raised in an answer filed-Ex gratiá.

[The REFEREE-Oct. 10; STRONG, V. C., Oct. 27, 1873.] An order pro confesso was vacated and a defendant allowed to file an answer notwithstanding great and unexplained delay, no sittings of the Court having been lost thereby.

THE REFEREE refused to allow the defendant to set up a defence amounting to a plea to the jurisdiction as not being a meritorious defence, according to the practice at law, (see Lush Pr. 447.) But on appeal STRONG V. C., reversed this part of the order of the Referee, and allowed the defence to be set up.

REVIEWS.

THE CANADIAN MONTHLY AND NATIONAL REVIEW. Adam, Stevenson & Co., Toronto.

The Publishers, in their announcement for 1874, very naturally congratulate themselves on the success they have achieved so far. This monthly is undoubtedly highly favoured by being under the editorial management of one of the greatest masters of the English language, who himself contributes largely to its pages. It is stated that the periodical criticism upon national affairs, under the caption of "Current Events," will continue, and that the same impartiality of discussion will be adhered to in the treatment of all questions under review. We trust this may be so, and that there will be an avoidance of anything like siding with any political party, and this we believe the writer earnestly desires. We are told, however, that the atmosphere is at present highly charged with an unsavoury smell, said to have the flavour of political rancour, and that there is a fear that it may penetrate even to the judicial mind of this most able critic. However, having no nose for such matters, and not being able to see the length of that organ, except in things appertaining to the law and its administration, we cannot offer an opinion on the subject-we can, however, assert most positively, that we wish the Canadian Monthly a continuance of that success which has so far attended it, and an ever increasing circulation in this Canada of ours.