14. A testator owned two manufactories, one on the west, and another (worth half as much) on the east side of H. street, which had been for the thirty years previous to his death jointly occupied and used by his tenants at a single rent for the same manufacture, but which, with certain alterations, could be used separately. By will he devised all his real estate to trustees for sale, and by codicil devised his "messuages, manufactory, &c., on the west side of H. street, in the occupation of R. and A. and others, totogether with all rights and appurtenances to them belonging," to A. and W. R. and A. then occupied both manufactories. Held, that the manufactory on the east side did not pass under the devise.-Smith v. Ridgway, Law Rep. 1 Ex. 331.

15. A will made before the Wills Act was to this effect: "As touching my worldly estate, I give and bequeath to my wife, who I likewise make sole executrix, all my lands and tenements, by her freely to be possessed and enjoyed, together with all my houses and household goods, deeds and moveable effects; all my children to be educated and settled in business according to my wife's discretion." Held, that the wife took the fee of the real estate.-Lloyd v. Jackson, Law Rep. 1 Q. B. 571.

16. A testator devised real estate "to A., and after his death to his sons in tail; and in the event of his or their death without sons, then I leave the said estates to B., and, after his death, to his sons, beginning with the elder." On the prayer of the guardians of the two infant sons of A., asking directions concerning the application of the rents, held, that the two sons took estates in tail male in remainder. Quære, whether they took as joint tenants for life, with several limitations in tail, or as tenants in common.-De Windt v. De Windt, L. Rep. 1 H. L. 87.

17. Testatrix, being joint heiress with her two sisters of certain tithes, gave to her sisters her third part, to be equally divided between them, and to be held by and subject to the same conditions by which they held the other two parts. At the date of the will, both sisters were married, and the shares of the tithes of each had been put into their marriage settlements. Held, that the sisters were entitled to a moiety of the third on the trusts declared by their respective marriage settlements of their original shares.-Ord v. Ord, Law Rep. 2 Eq. 393.

18. A will made by a woman previous to her second marriage, under a power contained in a settlement made in contemplation of her first marriage, may be revoked by another will during her second marriage, though no power

of revocation was reserved by the settlement, and no settlement was made on the second marriage.-Hawksley v. Barrow, Law Rep. 1 P. & D. 147.

19. A clause in a will, excluding representatives of legatees who might die before the period of distribution, was struck through with a pen, and the cancellation attested by a codicil in the margin, in ordinary testamentary form. Held, that the representatives of a legatee, who had attested the cancellation, and had died before the period of distribution, were excluded, under 1 Vict. c. 26, § 15.-Gaskin v. Rogers, Law Rep. 2 Eq. 284.

See ADMINISTRATION; EXECUTOR; POWER, 2, 3;
SEPARATE ESTATE, 2; SURVIVORSHIP; VESTED
INTEREST.

WITNESS.

Opposite the seal of a company, attached to a bill of sale, were the names of two of the directors, purporting to sign as such. The secretary gave evidence that "it was usual to affix the seal in the presence of the board, and for two directors to attest it." Held, that the directors were not "attesting witnesses," within the 17 & 18 Vict. c. 36, and that, therefore, their residences and description need not be stated in the affidavit accompanying the bill of sale.-Shears v. Jacob, Law Rep. 1 C. P. 513.

See COM. TO EXAMINE WITNESSES; WILL, 2, 19. WORDS, CONSTRUCTION OF.

Evidence of wife against husband.

TO THE EDITORS OF THE LAW JOURNAL. GENTLEMEN,-There have been some conflicting decisions by the judges of the Superior Courts at Nisi Prius, respecting the competency of a wife to give evidence against her husband. Referring you to the 5th section of chapter 32 of 22 Victoria, Con. Stat. U. C., page 402, I request you to mark the wording. It enacts that "This act shall not render competent, or authorise or permit any party to any suit, &c., or the husband or wife of such party, to be called as a witness on behalf of such party;

but such party may, in any civil proceeding, be called and examined as a witness in any suit or action at the instance of the opposite party: Provided always, that the wife of the party to any suit or proceeding named in the record, shall not be liable to be examined as a witness at the instance of the opposite party."

The question is, can a brother, who has supported a wife and her child, who have been inhumanly driven by her husband from his home, when only a few days out of her confinement, call upon the wife to prove the board, lodging, necessaries, &c., furnished to her during a period of two years, in which her husband has deserted her by removing to a foreign country? The late Chief Justice McLean held that she was competent, if 80 disposed; that she was not liable to be examined, if she objected. There has been a contrary decision given since then. Pray which decision is right? I have only to remark that the wife may be the only person able to prove the expulsion from her husband's house, and the amount furnished her. Being married, she cannot bind herself (she may bind her husband) for necessaries. She is not named in the record; she cannot be said to be "a person " in whose immediate or individual behalf the action is brought. It is brought in behalf of her brother, to whom she is in no way legally liable. I am, &c., QUESTIONER.

[We touched upon this subject in the last number of the Local Courts Gazette; but as the views of the learned gentleman who writes are not, we understand, entirely in accordance with views we have expressed, we shall endeavour to return to the subject next month. EDS. L. J.

REVIEW.

ON PARLIAMENTARY GOVERNMENT IN ENGLAND; ITS ORIGIN, DEVELOPMENT, AND PRACTICAL

OPERATION. By Alpheus Todd, Librarian of the Legislative Assembly of Canada. In two volumes. Vol. I. London: Longmans, Green & Co., 1867. $4 50.

The Dominion of Canada is, we all hope and most of us think, "equal to the occasion." She possesses eminent statesmen, at whose head, it may not be going out of our way to boast, is one of our cloth. Judges we have had and still have, whose industry, talents and unblemished integrity, are an omen of good for

the future. Others we have, who in various ways have, and yet will leave a worthy name on the page of history. But in a country whose existence as a nation can scarcely even yet be said to have commenced, and where life is so active, with so few opportunities for men, even with a taste for letters, to follow the bent of their talent or inclinations, it might naturally be thought that it would be difficult to find a person who could attain to eminence in the study of such a profound subject as that treated of in the volume before us.

Many men might in the position of Mr. Todd as Librarian of the Legislative Assembly of Canada, be as courteous and as attentive to his duties as he is (though even this may be questioned), but few, we venture to say, would improve the occasion with his diligence and devotion, and fewer still could with equal talent give to the world the result of such research and thought as he has displayed.

In the preface, the author gives an explanation of the "attempt by a resident in a distant colony to expound the system of parliamentary government as administered in the mother country." An explanation only useful, we should imagine, for the purpose of disarming that very liberal portion of the British public who think that nothing is good that is not English.

More than twenty-five years ago, prior to the appearance of May's "Usages of Parliament," Mr. Todd published a manual of parliamentary practice for the use of the Legislature, which was received with much favour by the Canadian Parliament, and was formally adopted for the use of members, and the cost of its production defrayed out of the public funds. In the same year, the principle of responsible government was first applied to our colonial constitution.

Being frequently applied to by those engaged in carrying out this new and then untried scheme, as well as by his own addiction to parliamentary studies, he acquired a mass of information which proved of much utility in the settlement of many points arising out of responsible government; this moreover was not of a merely local or temporary character, but capable of general application. This led him eventually to write a treatise on the parliamentary government of Great Britain -which, as he says, whilst trenching as little as possible on ground occupied by former writers, might supply information upon branches of constitutional knowledge hitherto overlooked, and give some account of the growth, development and present functions of the Cabinet Council, and the practical treatment of the questions involved in the relations of the Crown and Parliament.

Our author is eminently conservative (using the word, of course, in its original and not in its political acceptation) in his views on these subjects, claiming that "the great and increasing defect in all parliamentary governments,

whether provincial or imperial, is the weakness of executive authority," and that "any political system which is based upon the monarchical principle, must concede to the chief ruler something more than mere ceremonial functions." An attentive perusal of that part of the work devoted to the royal prerogative, will go far to convince the most skeptical that the sovereign is really more than an ornamental appendage to the state, and that the functions of the Crown have their appropriate sphere. These functions are the more apt to be unappreciated because their most beneficial operations are those which, whilst strictly constitutional, are hidden from the public eye."

The first volume, which alone has yet been published, is complete in itself, and is divided into five chapters:

Chap. I.-A general introduction.

Chap. II.-Historical introduction, giving a review of the origin and progress of Parliamentary Government.

Chap. III.-The constitutional annals of the administrations of England from 1782 to 1866, with a tabular statement of the Ministries during the same period, their appointment, retirement, &c.

Chap. IV. is devoted to the discussion of the constitutional position, powers, privileges and duties of the sovereign, with a sketch of the character and public conduct of the four Georges, William IV., Queen Victoria and the late Prince Consort.

Chap. V. treats of the Royal Prerogative in connection with Parliament.

It is impossible more than thus to give a faint outline of the subjects treated of in this volume. Let it suffice to say that they are of the most interesting nature, and that a variety of information is given which can no where else be found collected and arranged in an analytical and methodical shape. References are given to the writings and speeches of the most eminent statesmen, historians, and writers on con. stitutional law, to establish the various views and propositions laid down by the author.

We take at random some extracts from the volume, to show the style of the writer. In speaking of the constitutional position of the sovereign, he says:

"We have already seen that, in a system of parliamentary government, as it is administered in England, the personal will of the monarch can only find public expression through official channels, or in the performance of acts of state which have been advised or agreed to by responsible ministers; and that the responsible servants of the crown are entitled to advise the sovereign in every instance wherein the royal authority is to be exercised. In other words, the public authority of the crown in England is exercised only in acts of representation, or through the medium of ministers, who are responsible to Parliament for every public act of their sovereign, as well as for the general policy of the government which they have been called upon to administer. This has been termed the theory of Royal Impersonality.

But the impersonality of the crown only extends to direct acts of government. The sovereign retains full discretionary powers for deliberating and determining upon every recommendation which is tendered for the royal sanction by the ministers of the crown; and, as every important act of administration must be submitted for the approval of the crown, the sovereign, in criticising, confirming, or disallowing the same, is enabled to exercise an active and intelligent control over the government of the country.

"In the fulfilment of the functions of royalty, much must always depend upon the capacity and personal character of the reigning monarch. It has been well observed, by a sagacious political writer, that a wise and able sovereign can exercise in the councils which he necessarily shares whatever authority belongs to his character, to his judgment, and, in the course of years, to his unequalled experience. A lifelong tenure of office ensuring an uninterupted familiarity with public business, gives a king considerable advantage over even veteran ministers; and the undefinable influence of supreme rank is in itself a substantial basis of power. But in order to discharge his functions aright, it is indispensable that the sove reign should be ready and willing to labour zealously and unremittingly, in his high vocation; otherwise he will be unable to cope with the multifarious and perplexing details of government, or to exercise that controlling power overstate affairs which properly appertains to the crown. On the other hand, a sovereign who, from whatever cause, is indifferent to the exercise of his kingly functions, may neglect the administrative part of his duties, and, if he be served by competent ministers, the commonwealth will suffer no immediate damage. But, in such a case, the legitimate influence of the monarchical element in the constitution is im

paired, and is rendered liable to permanent deprivation. Moreover, while a sovereign may forego the active control of the affairs of state without apparent public loss, provided his ministers are able and patriotic, the moment political power falls into the hands of self-seeking and unscrupulous men, the nation is deprived of the check which a vigilant monarch alone can maintain-a check no less valuable because unseen, but which may suffice, upon an emergency, to save the country from the effects of misgovernment. For the sovereign can always dismiss a ministry, and summon another to his councils, provided he does so, not for mere personal considerations, but for reasons of state policy, which the incoming administration can explain and justify to the satisfaction of Parliament. This branch of the royal prerogative will hereafter engage our attention more fully."

Our author thus concludes his first volume:

"We have now passed under review the principal prerogatives of the British crown, and have endeavoured to point out, in the light of precedent, and with the help of recognized authority

* Saturday Review, Nov. 8, 1862. And see some weighty remarks in the same journal, for June 4, 1864, in an article on "Foreign Influence." See also, on the advantages deriv. able from the experience of a sagacious king: Bagehot, on the English Constitution, in the Fortnightly Review for October 15, 1865, pp. 605–609.

† See Bagehot's paper, above cited, pp. 610-612.

in the interpretation of constitutional questions, the proper functions of Parliament in relation thereto. We have shewn that the exercise of these prerogatives have been entrusted, by the usages of the Constitution, to the responsible ministers of the crown, to be wielded in the king's name and behalf, for the interests of the state; subject always to the royal approval, and to the general sanction and control of Parliament. Parliament itself, we have seen, is one of the councils of the crown, but council of deliberation and advice, not a council of administration. Into the details of administration a parliamentary assembly is, essentially, unfit to enter; and any attempt to discharge such functions, under the specious pretext of reforming abuses, or of rectifying corrupt influences, would only lead to greater evils, and must inevitably result in the sway of a tyrannical and irresponsible democracy; Instead of the function of governing, for which,' says Mill, such an assembly is radically unfit, its proper office is to watch and control the government; to throw the light of publicity on its acts; to compel a full exposition and justification of all of them which any one considers questionable, to censure them if found to merit condemnation; and if the men who compose the government abuse their trust, or fulfil it in a manner which conflicts with the deliberate sense of the nation, to expel them from office'- -or, rather, compel them to retire, by an unmistakable expression of the will of Parliament. Instead of attempting to decide upon matters of administration by its own vote, the proper duty of a representative assembly is to take care that the persons who have to decide them are the proper persons,' 'to see that those persons are honestly and intelligently chosen, and to interfere no further with them; except by unlimited latitude of suggestion and criticism, and by applying or withholding the final seal of national assent.]"

The second volume will be composed, we are told, of four chapters, as follows:-I. The Cabinet Council; its origin, modern development and present position in the English constitution. II. The several members of the Administration; their relative position and political functions. III. The Administration in Parliament; their conduct in public business, &c. IV. Proceedings in Parliament

against Judges for misconduct in office. We can well imagine, judging from the contents of the first volume, how interesting and instructive the second will be, and we look forward to its perusal with pleasure. It will not, however, as we are informed, be published this year, as the announcement at the end of the first volume would seem to indicate.

A glance at the apparently very complete Index, at the end of the first volume, shows a vast store of interesting topics discussed by the learned and pains-taking author. The paper and printing are of the best description, from the celebrated house of Longmans, Green & Co.

We may mention that this work has had a very flattering reception from the press in England. The London Globe, the London Canadian News, and that most hard-to-please periodical, the Saturday Review, all notice the volume most favorably.

To conclude. Coming as it does at this particular juncture, the crisis of Canadian history, when parliamentary government must necessarily become of more importance than it has hitherto been, the information to be derived from this book, and the sober-minded, sound and thoroughly British views held and so well expressed by the author, will be of the greatest service; and we doubt not that it will command a very extensive sale, not only machinery of government and legislation, but amongst those intimately connected with the amongst all who have any desire, as all should have, to understand the theory and practice of that admirable form of government which we have inherited from our forefathers, and which we all hope to perpetuate in this Canada of

ours.

APPOINTMENTS TO OFFICE.

NOTARIES PUBLIC.

CYRUS CARROLL, of the village of Wroxeter, Esq., to be a Notary Public for Upper Canada. (Gazetted May, 11, 1867.) ROBERT MITCHELL, of Guelph, Esq., Attorney-at-Law, (of the firm of McCurry & Mitchell of that place,) to be a Notary Public for Upper Canada. (Gazetted May 11, 1867.) DAVID WILSON, of Farmersville, Esq, to be a Notary Public for Upper Canada. (Gazetted May 25, 1867.)

CORONERS.

WILLIAM J. ROE, of Bothwell, Esq., M.D., to be an Associate Coroner for the County of Kent. (Gazetted May 25, 1867.)

TO CORRESPONDENTS.

“QUESTIONER”—under "General Correspondence."

HOW TO ARRIVE at a Verdict.-Colonel Myddelton Biddulph, M.P., and the trustees of the Wem and Bronygarth-road not being able to settle the amount of compensation for land amicably, the matter has been settled by a jury. And it would appear that the 12 gentlemen who composed the conclave were much divided in their notions of the value of the colonel's land, some considering that £75 was sufficient compensation, and others holding the opinion that £450 was not to much. After nearly two hours "deliberation," the knotty point was decided by a stroke of genius on the part of the foreman, who suggested that each should put down on a slip of paper the amount he considered a just satisfaction to the claim, and when they had done so he would add up the twelve sums and the division of the total by twelve should be the amount awarded. This proposal was heralded with delight, every one would be represented in the decision, the idea was carried out, and Colonel Myddelton Biddulph was awarded £165.-From the Oswestry Advertiser.

DIARY FOR JULY.

1. Mon... County Court and Surrogate Court Term com. Heir and Devisee sittings. Long Vacation. Last day for County Council finally to revise asses-ment roll and to equalize R. L. M.

4. Thurs. Sittings Court of Error and Appeal. 6. Sat.... County Court and Surrogate Court Term ends. 7. SUN... 3rd Sunday after Trinity.

13. Sat. Last day for County Judges to make return of appeals from assessments.

14. SUN... 4th Sunday after Trinity.
16. Tues... Heir and Devisee sittings end.
21. SUN... 5th Sunday after Trinity.

25. Thurs. St. James.

28. SUN... 6th Sunday after Trinity.

THE

Upper Canada Law Journal.

JULY, 1867.

THE DOMINION OF CANADA.

It is not for information to the public, or as a matter interesting to the profession, that we hail the first day of July as a day to be remembered by Canadians; but it is right that we should so far go out of our usual course as to chronicle an event which, however interesting at the present time, is even more full of portent for the future.

The Provinces of Canada, Nova Scotia. and New Brunswick, become on the 1st of July instant, by virtue of the Queen's Proclamation, dated the 29th March, 1867, under the authority of the Imperial Act of 30 Vic. cap. 3, sec. 3, one Dominion, under the name of Canada. What was formerly known as Upper Canada being now Ontario, and Lower Canada being styled Quebec; each of the four Provinces having a distinct local legislature, with a general government for the Union.

The Right Honorable Charles Stanley, Viscount Monck, and Baron Monck of Ballytrammon, was appointed by the Crown the Governor General of Canada; and subordinate to him have been appointed, MajorGeneral Henry William Stisted, C.B., Lieutenant-Governor of the Province of Ontario; The Honorable Sir Narcisse Fortunat Belleau, Knight, Lieutenant-Governor of the Province of Quebec; Lieutenant-General Sir William Fenwick Williams, Baronet of Kars, K.C.B., Lientenant-Governor of the Province of Nova Scotia; Major-General Charles Hastings Doyle, Lieutenant-Governor of the Province of New Brunswick.

The appointment of the military commanders in Ontario, Nova Scotia and New Brunswick is provisional merely.

The Canada Gazette of the 3rd instant also contains the designation of the ministerial offices, with the names of the persons appointed to fill them who are all, moreover, members of the Queen's Privy Council for Canada, viz. :—

The Honorable Sir John Alexander Macdonald, K.C.B., to be Minister of Justice and Attorney General; The Honorable George Etienne Cartier, C.B., to be Minister of Militia; The Honorable Samuel Leonard Tilley, C.B., to be Minister of Customs; The Honorable Alexander Tilloch Galt, C. B., to be Minister of Finance; The Honorable William McDougall, C. B., to be Minister of Public Works; The Honorable William Pearce Howland, C.B., to be Minister of Internal Revenue; The Honorable Adams George Archibald, to be Secretary of State for the Provinces; The Honorable Adam Johnson Fergusson Blair, to be President of the Privy Council; The Honorable Peter Mitchell, to be Minister of Marine and Fisheries; The Honorable Alexander Campbell, to be Postmaster General; The Honorable Jean Charles Chapais, to be Minister of Agriculture; The Honorable Hector Louis Langevin, to be Secretary of State of Canada; The Honorable Edward Kenny, to be Receiver General.

The Executive Councils of Ontario and of Quebec are to be composed of such persons as the Lieutenant-Governors may think fit; and in the first instance of the following officers, namely-the Attorney General, the Secretary and Registrar of the Province, the Treasurer of the Province, the Commissioner of Crown Lands, the Commissioner of Agriculture and Public Works, with, in Quebec, the Speaker of the Legislative Council and the Solicitor General.

The Constitution of the Executive autho. rity in each of the Provinces of Nova Scotia and New Brunswick is, subject to the provisions of this Act, to continue as it existed at the Union, until altered under the authority of this Act.

Lord Monck was sworn in at Ottawa on the 1st of July, by Chief Justice Draper assisted by Chief Justice Richards, Mr. Justice Hagarty, and Mr. Justice John Wilson, from the Province of Ontario, and Judge Mondelet,