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Digest of English LAW REPORTS.

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station master. The plaintiff, while at his usual employment, was injured by the negligence of the defendant's engine driver. Held, that the plaintiff and the engine driver were not fellow servants.- Warburton v. Great Western Railway Co., Law Rep. 2 Ex. 30.

3. By statute, commissioners were to make and maintain a drain and sluice; by the negli. gence of their servants, the sluice burst, and the plaintiff's land was damaged. In an action against the commissioners in the name of their clerk, Held, that the commissioners were liable, though they were a public body, discharging a public duty, without reward and without funds.—Coe v. Wise, Law Rep. 1 Q. B. 711.

4. A section of a statute appointing commissioners to make and maintain a drain, provided that if any one should sustain damage, by or in consequence of any act of the commissioners or their servants, the damage should be ascer. tained by a jury. Held, that the section applied only to damage resulting from acts authorized by the statute; but that, even if it extended to authorised acts, it did not, on a review of the statute, apply to an omission or non-feasance by the commissioners' servants. Quære, whe. ther the section would not oust the jurisdiction of the superior courts in cases to which it applies; semble, that it would. - Coe v. Wise, Law Rep. 1 Q. B. 711.

5. The owner of works carried on for his profit by his servants may be indicted for a public nuisance caused by their acts in carrying on the works, though done without his knowledge, and contrary to his general orders:

- The Queen V. Stephens, Law Rep. 1 Q. B. 702. MISTAKE.—See RELEASE. MORTGAGE.

1. The articles of a partnership empowered any partner to dispose of his shares, but gave a right of pre-emption to the others. A partner made an equitable mortgage of his shares, which was assented to by the others, and afterwards sold his shares to A., a co-partner. Held that all the partners were necessary parties to a suit for the foreclosure of the mortgaged shares; that, if A. did not redeem, the other partners might; that, if neither A. nor the other partners redeemed, the mortgagee was entitled to foreclosure, and to an account of the profit made since filing the blll, and of the existing debts and liabilities of the partnership, and to have the share of such debts and liabi. lities attributable to the mortgaged shares ascertained. — Redmayne v. Forster, Law Rep. 2 Eq. 467.

2. A creditor agreed to remit part of the debt, on the debtor's giving him, for the balance, a mortgage, with a proviso, that, if the mortgage debt were not paid within two years, the whole of the original debt should be recovered. The debt was not paid within the two years. Held that the proviso was a penalty against which equity would relieve, and that the mortgagee could recover only the smaller sum.—Thompson v. Hudson, Law Rep. 2 Eq. 612.

3. Property was conveyed to trustees to raise £75,000, and pay off prior mortgagees, whose debts, including arrears of interest, amounted to that sum. The trustees did not raise the £75,000, but allowed A. to pay the prior mortgages, and take transfers of them; and then, in consideration of such payments made a deed, purporting to assign to A. the £75,000 raisable, and to mortgage the property to A. for £75,000. Held, that A. could not charge interest on £75,000, but could only stand as mortgagee for the principal and interest due on the transferred mortgages. Thompson v. Hudson, Law Rep. 2 Eq. 612.

4. A railway company took land, paying money into court, and giving bonds to the owner and his equitable mortgagees. The mortgagees were aware, though without formal notice, of the inquiry into the amount of compensation, but took no part in it. The compensation awarded, which was less than the amount in court, and not sufficient to pay the mortgagees, was transferred to a suit begun by them, and ordered to stand as security. Held, that the mortgagees had no lien on the sum in court, but that they were not bound by the inquiry, and were entitled, in default of payment, to an assignment by the company and landowner of the land.-Martin v. London, Chatham and Dover Railway Co., Law Rep. I Ch. 501.

5. Pending a suit for raising portions out of a settled estate, the tenant for life took some of the leases abroad. Afterwards, he brought into court, by its order, all the title deeds and leases. The portions having been raised by mortgage, he applied to have the deeds and leases given up to him. Held, by Knight Bruce, L. J., that they ought not to be delivered to him without the mortgagees' consent. Per Turner, L. J., semble, that they should be delivered to him, on his giving security for their safe custody and production.—Jenner v. Morris, Law Rep. 1 Ch. 603. See CONTRACT, 4; DEED, 2; FREIGHT, 4;


1-3; SHIP, 1.




British Constitution contributed to the Fort

nightly Review. But nowhere have the rights PARLIAMENTARY GOVERNMENT IN ENGLAND, —

and duties of the Sovereign, and the


between the Royal prerogative and Parliament, OPERATION, By ALPHEUS Todd.*

been so minutely traced and clearly exhibited

as in the volume before us. This is not law, (From the Law Times.)

it is true, but it is so nearly allied to law that Partly historical, partly legal, this work will the lawyer who desires to know something claim a place in the general as well as in the more than its technicalities will welcome an professional library. It is not a book of prac- instructor who will teach him so much that tice; it will not be often referred to for the is useful to know in so pleasant a manner. ordinary business of the office, but it is one of There is but one fault: Mr. Todd is a Canadian those treatises upon matters so intimately lawyer, and the work was, we believe, written connected with the law-forming its founda- in Canada. He daily witnesses there democtions, in fact—which every lawyer who desires racy in practice, and he is not far from its to master the science of his profession, to trace operation on a wider scale in the United States. its history, and understand meaning of His experience has taught him to look upon many things which occur in his daily experi- democracy with intense dislike and dread, and ence, and of which the form remains while the in his great anxiety that England shoula profit spirit has fled, will peruse with the profoundest by the example, and shun the hideous despotinterest and with no small amount of profit. ism into which the colonies have lapsed, † he

The first chapter is a masterly sketch of continually interrupts his proper narrative Parliamentary Government as it exists in with warnings, which, however valuable in England, followed by an historical introduc-themselves, are out of place in such a work, tion, in which the author traces its growth and savour too much of the leading article. from the first dawnings of it down to the time He should have been content with an unimof the Revolution of 1688, when the principle passioned statement of facts, leaving inferences of ministerial responsibility was firmly estab- to the common sense of his readers. I With lished, William III. being the first really con- this exception the volume is one worthy of stitutional monarch. Thence to the Reform

all praise, and if in the next edition Mr. Todd Bill Mr. Todd follows its fortunes, pointing will blot out whatever is merely ephemeral, ont the effects of that great measure, by which he will have given to historical and philosophithe real power was transferred from the aris- cal literature a book which the world will not tocracy to the middle class, as now it is about willingly let die. We shall look with interest to be transferred from the middle class to the

for the appearance of the second volume. working class. The second part of this historical review is devoted to a sketch of the

† It may fairly be questioned whether, practically, the Constitutional annals of the successive admin- deinocratic element is so full of life in this country as it is istrations in England from 1782 to 1866, giving

even in England. This may be rather a startling observa

tion, but under what circumstances, judging from the history a brief account of the circumstances attending of the past few months, could the British Parliament bave their appointment, resignation or dismissal,

passed a measure so much the reverse of democratic as our

late Municipal Act. We presume that our contemporary by with notices of the various Constitutional the use of the word “Colonies" (which are said to have lapsed questions, and illustrations of ministerial into a "hideous despotism") refers to the United States; if

80, true enough, otherwise, simply absurd. duty or responsibility which arose within that period.

* We must in a great measure disagree with our cotem

porary; pot merely because we, as Canadians (at one with The history concluded, Mr. Todd proceeds

the English nation as to the strength and beauty of a constito an analysis of the elements out of which tutional monarchy) agree with the sentiments of the author. Parliamentary Government is constructed.

but because the views of any one having the ackn. wledged

ability of Mr. Todd, are especially entitled to weight, and First of these is the Sovereign, whose precise are of great value in themselves, from the study which he position and office in the machinery of

has given to this particular branch of his subject--one which,

we think, fall legitimately within the scope of the work. the State is far more subtle and difficult to understand than is supposed by persons who have given but little thought to the subject. APPOINTMENTS TO OFFICE. Between those who still cherish the notion that there is a divinity that doth hedge a king,

CLERK OF TUE CROWN IN CHANCERY. and those who look upon the Sovereign as a EDWARD JOSEPI LANGEVIN, Esquire, to be Clerk of mere ornament of the State, are the more ra- the Crown in Chancery, in and for the Dominion o Canada. tional and better informed, who know that the (Gazetted July 13, 1867.) Sovereign has important functions still, which, though they do not directly control the Gov- JOHN DAVENPORT ANDREWS, wf Little Biiton, Esernment, exercise a great indirect influence quire, M D., to be an Associate Coronor for the County of over the course of legislation, as described by Victoria, in the Provrnce of Ontario. (Gazetted July 13, Mr. Bagehou in his very able essay on the 1867.)



• We have already received this valuable work, but the folosing critique whews that our enconjums upon it are but pleater than those which it has received from the English press.

* ST. LAWRENCE” crowded out, will apzonr next month.


2. Mon.

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21. Sat. ... St, Matthew.


Upper Canada Law Journal.


statutes did apply, then the marriage was

at most only irregular, but not null and void. 1. SUN... 11th Sunday after Trinity.

It'is evident that here are very important Last day for notice of trial for County Court er's Cou

questions as to the privileges of our Roman 4. Wed... Notices for Chancery re-hearing Term to be Catholic fellow subjects, and as to the status 8. SUN... 12th Sunday after Trinity.

of many of those who are not Roman Catholics, 10. Tues... Quarter Sessions and County Court sittings in each County.

upon which no shadow of doubt should be 12. Thurs. Chancery re-bearing Term begins. 15. SUN... 13th Sunday after Trinity.

allowed any longer to rest. It should be one

of the first objects of the Confederate Parlia29. SUN... 11th Sunday after Trinity. 25. Wed... Appeals from Chancery Chambers.

ment, to declare the law authoritatively upon 29. Sat. ... 15h Sunday after Trinity. St. Michael.

these points. On the one hand, privileges are claimed for the Roman Catholics which exceed those granted to any other religious body; on the other hand, if they are on the same footing as other churches, it would appear that a deviation from the requirements

of Lord Hardwicke's Act, operating as a total SEPTEMBER, 1867.

annulment of the marriage tie, would produce consequences, especially as to the issue of

such marriages, frightful to contemplate. THE MARRIAGE LAWS.

As regards the marriage in question, the There is a case now standing for judgment matters presented for adjudication are, as the in the Court of Chancery, which discloses the Chancellor remarked, whether the marriage of necessity for a thorough revision and amend- Roman Catholics by their own Bishop is regument of our Marriage Laws.

lated by our statute, or by the French law An action for alimony was brought by the applicable to the subject which obtained at wife against the husband, on the ground of the time of the cession of Canada, or whether, desertion, and the defence set up was that the exempt from both, the Roman Catholics are alleged marriage of the parties was celebrated in this respect a law unto themselves. by the Roman Catholic Bishop of Toronto, It is our object, in a few papers, to discuss without the publication of banns or the pro- some of the points which present themselves curement of a license from the Governor, under in this case, in order that the necessity for the statute, and that such marriage was cele- legislative interference may be the more manibrated privately in the Bishop's house, without fest, and that the best mode of applying a any witness being present, and after canonical remedy may be elicited. hours. The aid of the English statute, known

And, first, there would seem to be but little as Lord Hardwicke's Act, was also invoked,

doubt that Lord Hardwicke's Act is in force whereby it is provided that marriages celebrated

in Upper Canada. Under English law, marwithout banns or license, shall be deemed clan

riage is a civil contract, involving civil rights destine, and shall be null, and void to all

and liabilities, and the very first act of the intents and purposes whatsoever.

Local Legislature of Upper Canada, when The plaintiff sought to avoid this defence called into existence, was to pass an act adoptby setting up that these acts did not apply to ing English law in regard to “all matters of Roman Catholics (both parties being such in controversy relative to property and civil this case, and resident within the diocese of rights." P. S. 32 Geo. III. cap. 1, sec. 8. the Bishop who officiated at the marriage

See Con. Stats. U. C. cap. 9, sec. 1.

The ceremony); that marriage was accounted a marriage law, then in force in England, and by sacrament by the Roman Church, and as such, such act introduced into Upper Canada, was being a part of their religion, it was preserved 26 Geo. II. cap. 33 (Lord Hardwicke's Act). to them intact by the stipulations made upon This position appears to have been at first the capitulation of Canada, and that it was doubted by the late Chief Justice Robinson, in open to that church to regulate the celebra- Reg. v. Secker, 14 U. C. Q. B. 604, and Reg, v. tion of marriage by their own ecclesiastical Bell, 15 U. C. Q. B. 290 ; but subsequently he rules -- and at all events, if the aforesaid announces the deliberate opinion of the court

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in Reg. v. Roblin, 21 U. C. Q. B. 352, in the courts hold that as it would work great hardfollowing language:

ship to have the 11th clause in force without “We consider that our adoption of 32 Geo. III. the 12th or any other provision as a substitute cap. 1, of the law of England * * included for it, therefore it is to be taken that in this the law generally which related to marriage. Province the marriages of minors without the The statute 26 Geo. II. cap. 33, being in force in consent of their parents or guardians, are not England when our statute 32 Geo. III. cap. 1 was to be accounted invalid, but simply irregular, passed, was adopted as well as other statutes, so

illegal, and in breach of the usual bond-con. far as it consisted with our civil institutions, being

dition that no impediment exists. part of the law of England at that time relating to civil rights : that is, to the civil rights which an inhabitant of Upper Canada may claim as a

QUIETING TITLES. husband or wife, or as lawful issue of a marriage We give hereafter the recent orders under alleged to have been solemnized in Upper Canada.

sec. 52 of the Act for Quieting Titles. The * The Legislature of Upper Canada have so former orders are rescinded. It will be seen regarded this matter, as appears by the statute that the chief feature under the new orders is 33 Geo. III. cap. 5, secs. 1, 3 and 6; 38 Geo. III.

the giving of jurisdiction to the local Masters, cap. 4, sec. 4; and 11 Geo. IV, cap. 36, in which

subject to the supervision of an inspector in they have recognized the English Marriage Act,

Toronto, so as to enable country practitioners in effect though not in express terms, as having

in contested cases, or where viva voce testithe force of law here in a general sense, and con

mony has to be given, to attend personally trolling the manner in which marriage is to be

and avoid the necessity of employing counsel solemnized. “We find nothing in the ordinances of the

in Toronto, or of sending their witnesses for Governor and Council of the province of Quebec,

examination. nor anything in the British Statutes, 14 Geo. III. In consulting the interests of those at a cap. 83, or 31 Geo. III. cap. 31, or in any other

distance from Toronto, by giving jurisdiction British Statute passed between the 26 Geo. II. to local Masters, it seems to have been felt cap. 33, and the time of our adopting the law of that some supervision was advisable by reason England, which can affect us in this matter, nor of the important consequences attending the anything in any British or Imperial act passed decision of the referee and the certificate of since, which either extends to the Colonies gene- title under section 30 of the Act. When, rally or to Canada ir particular.”

therefore, a local Master is named as referee, Besides the Provincial Statutes above cited one of the Toronto referees is to act as inspecby the Chief Justice, reference may also be tor, with whom the local Master may, under made to 2 Geo. IV. cap. 11, sec. 1, which con- order 7, correspond for advice and assistance; tains express mention and recognition of the and by order 4, the petitioner must, when he English Marriage Act as in force in Upper selects a local Master as referee, endorse on Canada. The only case reported subsequent his petition the name of either Mr. Turner to Reg. v. Roblin, in which the marriage laws or Mr. Leith as inspector, as he may think were considered, is that of Ilodgins v. McNeill, proper, 9 Grant, 305, wherein Esten, V. C., takes There may be cases depending on no disthe same view of the law and substantially puted questions of fact, but solely on difficult follows the previous case.

questions of law, or cases in which, from the Both courts agree in this, that while Lord large amount involved, it may be thought Hardwicke's Act is generally in force, yet the expedient by an applicant to have the assist11th section is not to be considered as part of ance of counsel in Toronto, and that the case the law of this Province. That section avoids should be heard before a Toronto referee the marriages of minors without the consent without the intervention of a local Master, of their parents and guardians first had, and and power is given by order 3 to refer the case the 12th section provides that if the parents at once to either of the referees. Where and guardians are of unsound mind, or beyond also a case is referred directly to a Toronto the seas, or shall unreasonably withhold con- referee, some delay may be avoided which sent, an application may be made to the might attend a reference to a local Master, and Lord Chancellor who has power to order such consequent communications between him and marriage without such consent.

And our

the inspector for advice, or on non-approval of

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decision or otherwise. On reference to a County Registrar will be given by the registrar Toronto referee, or indeed to any referee, he of the court, and the petition then be returned may correspond with the petitioner or his to the petitioner-see order 8. solicitor as to defects, and supplying of proof, 4. Deliver all deeds, proofs and matters &c. On the other hand the advantage of a required by sec. 5, 6 & 8, and order 10, to local Master being selected as referee may out- the referee (see order 9),—as to proof, see order weigh all other considerations, where witnesses 9 & 10. whose evidence has to be taken viva voce, The case is then in the hands of the referee reside at a distance from Toronto.

for adjudication, and he will proceed accordIt is to be observed that in an uncontesteding as he finds the title perfect or defective in case the referee under order 11 is to deal with an uncontested case, or hear the parties or it himself, without the necessity of hearing take evidence in contested cases. either counsel or solicitor, with whom, how- Alexander Leith, Esq., Barrister-at-law, has ever, he may, under order 12, correspond as been appointed the second Inspector and Refto proofs required or as to defects in the proof. eree under the new orders. His well known

We imagine that in cases where a widely ability and thorough knowledge of real properspread and yet groundless suspicion exists, as ty law will render him a most efficient officer, to the validity of a title, or where it depends and his appointment will, we doubt not, be on or a testimony of witnesses who may die or favorably received by the profession. go abroad, or where the title is so complicated as to involve much expense on each dealing

JUDGMENTS-EASTER TERM, 1867. with the property, the Act may be resorted to with great advantage, as also in cases where a

QUEEN'S BENCH. sale is to take place in lots, or the party in possession is desirous of establishing his title Present: DRAPER, C. J.; HAGARTY, J.; and as against an adverse claimant, whose claim

MORRISON, J. has an appearance of right, which considera

[Saturday, Sept. 6th, 1867.) bly reduces the value of the property to the

Fraser v. Grand Trunk Railway Company.

Rule absolute for new trial without costs. true owner, and when there is no mode of

Green v. Lewis.-Rule discharged. barring such adverse claimant.

Lodge v. Thompson.-Rule absolute to enter We should probably have enlarged our nonsuit unless plaintiff consent to take a rule observations, but that we understand, Mr. for a new trial on payment of costs within one Turner, one of the inspectors and referees,


Clarke'y. McCullough.-Rule discharged, leave will, in the course of two or three days,

to appeal granted. publish a short treatise on the Act and the

Gilpin v. Royal Canadian Bank.-Rule absopractice under it; we therefore merely give late for a new trial without costs. the following brief remarks and suggestions to Gibbs v. Gildersleeve.—Rule discharged. those who may apply under the Act:

Regina v. Township of Hamilton. — Judgment

arrested. 1. Consider carefully the title and the proof

Farrell v. Farrell.—Special case. Postoa to of it, and if it be defective do not apply-see plaintiff. Leave to appeal granted. secs. 6 & 32 & 48 of the Act.

Hatch (Truetee) v. Parker.—New trial. Costs 2. In the petition, a form of which is given to abide the event. in the Act, state accurately the estate or

Barr v. Canada Life Assurance Co.--Rule to interest claimed, and endorse thereon the

set aside nonsuit discharged.

Jacobs v Clarke.-Rule to enter nonsuit disreferee selected, and if a local master and not

charged. a Toronto referee be selected, then endorse Jacobs v. Clarke.—New trial on payment of the name of a Toronto referee who is to act costs. as inspector, (see order 3) and send the peti

Creighton v. Fretz, et al.-Rule absolute as to tion to him to be entered (see order 6) with

Lewis Fretz, discharged as to Allan Fretz.

McDonald v. McGillis. - New trial without his fee of $8—(see order 23).

costs. 3. After entry with the inspector, deliver to Commercial Bank v. Harris. Judgment for the registrar, who, if the application is under defendant on demurrer. (Morrison, J. dissentsec. 2 of the Act, will attend a judge for


Fitzgibbon of the City of Toronto.-Not suffi


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