DIARY FOR SEPTEMBER.

1. SUN... 11th Sunday after Trinity.

2. Mon... Last day for notice of trial for County Court Recorder's Court sits.

4. Wed... Notices for Chancery re-hearing Term to be served.

8. SUN... 12th Sunday after Trinity.

10. Tues... Quarter Sessions and County Court sittings in each County.

12. Thurs. Chancery re-hearing Term begins. 15. SUN... 13th Sunday after Trinity.

21. Sat. St. Matthew.

29. SUN... 14th Sunday after Trinity.

25. Wed... Appeals from Chancery Chambers.

29. Sat. ... 15th Sunday after Trinity. St. Michael.

THE

Upper Canada Law Journal.

SEPTEMBER, 1867.

THE MARRIAGE LAWS. There is a case now standing for judgment in the Court of Chancery, which discloses the necessity for a thorough revision and amendment of our Marriage Laws.

An action for alimony was brought by the wife against the husband, on the ground of desertion, and the defence set up was that the alleged marriage of the parties was celebrated by the Roman Catholic Bishop of Toronto, without the publication of banns or the procurement of a license from the Governor, under the statute, and that such marriage was celebrated privately in the Bishop's house, without any witness being present, and after canonical hours. The aid of the English statute, known as Lord Hardwicke's Act, was also invoked, whereby it is provided that marriages celebrated without banns or license, shall be deemed clandestine, and shall be null and void to all intents and purposes whatsoever.

The plaintiff sought to avoid this defence by setting up that these acts did not apply to Roman Catholics (both parties being such in this case, and resident within the diocese of the Bishop who officiated at the marriage ceremony); that marriage was accounted a sacrament by the Roman Church, and as such, being a part of their religion, it was preserved to them intact by the stipulations made upon the capitulation of Canada, and that it was open to that church to regulate the celebration of marriage by their own ecclesiastical rules and at all events, if the aforesaid

statutes did apply, then the marriage was at most only irregular, but not null and void. It is evident that here are very important questions as to the privileges of our Roman Catholic fellow subjects, and as to the status of many of those who are not Roman Catholics, upon which no shadow of doubt should be allowed any longer to rest. It should be one of the first objects of the Confederate Parliament, to declare the law authoritatively upon 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 annulment of the marriage tie, would produce consequences, especially as to the issue of such marriages, frightful to contemplate.

As regards the marriage in question, the matters presented for adjudication are, as the Chancellor remarked, whether the marriage of Roman Catholics by their own Bishop is regulated by our statute, or by the French law applicable to the subject which obtained at the time of the cession of Canada, or whether, exempt from both, the Roman Catholics are in this respect a law unto themselves.

It is our object, in a few papers, to discuss some of the points which present themselves in this case, in order that the necessity for legislative interference may be the more manifest, and that the best mode of applying a remedy may be elicited.

And, first, there would seem to be but little doubt that Lord Hardwicke's Act is in force in Upper Canada. Under English law, marriage is a civil contract, involving civil rights and liabilities, and the very first act of the Local Legislature of Upper Canada, when called into existence, was to pass an act adopting English law in regard to "all matters of controversy relative to property and civil rights." P. S. 32 Geo. III. cap. 1, sec. 3. See Con. Stats. U. C. cap. 9, sec. 1. The marriage law, then in force in England, and by such act introduced into Upper Canada, was 26 Geo. II. cap. 33 (Lord Hardwicke's Act). This position appears to have been at first doubted by the late Chief Justice Robinson, in Reg. v. Secker, 14 U. C. Q. B. 604, and Reg. v. Bell, 15 U. C. Q. B. 290; but subsequently he announces the deliberate opinion of the court

in Reg. v. Roblin, 21 U. C. Q. B. 352, in the following language:

"We consider that our adoption of 32 Geo. III. cap. 1, of the law of England * included the law generally which related to marriage. The statute 26 Geo. II. cap. 33, being in force in England when our statute 32 Geo. III. cap. 1 was passed, was adopted as well as other statutes, so far as it consisted with our civil institutions, being 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 husband or wife, or as lawful issue of a marriage alleged to have been solemnized in Upper Canada.

"The Legislature of Upper Canada have so regarded this matter, as appears by the statute 33 Geo. III. cap. 5, secs. 1, 3 and 6; 38 Geo. III. cap. 4, sec. 4; and 11 Geo. IV. cap. 36, in which they have recognized the English Marriage Act, in effect though not in express terms, as having the force of law here in a general sense, and controlling the manner in which marriage is to be solemnized.

"We find nothing in the ordinances of the Governor and Council of the province of Quebec nor anything in the British Statutes, 14 Geo. III. cap. 83, or 31 Geo. III. cap. 31, or in any other British Statute passed between the 26 Geo. II. cap. 33, and the time of our adopting the law of England, which can affect us in this matter, nor anything in any British or Imperial act passed since, which either extends to the Colonies generally or to Canada in particular."

Besides the Provincial Statutes above cited by the Chief Justice, reference may also be made to 2 Geo. IV. cap. 11, sec. 1, which contains express mention and recognition of the English Marriage Act as in force in Upper Canada. The only case reported subsequent to Reg. v. Roblin, in which the marriage laws were considered, is that of Hodgins v. McNeill, 9 Grant, 305, wherein Esten, V. C., takes the same view of the law and substantially follows the previous case.

Both courts agree in this, that while Lord Hardwicke's Act is generally in force, yet the 11th section is not to be considered as part of the law of this Province. That section avoids the marriages of minors without the consent of their parents and guardians first had, and the 12th section provides that if the parents and guardians are of unsound mind, or beyond the seas, or shall unreasonably withhold consent, an application may be made to the Lord Chancellor who has power to order such marriage without such consent. And our

courts hold that as it would work great hardship to have the 11th clause in force without the 12th or any other provision as a substitute for it, therefore it is to be taken that in this Province the marriages of minors without the consent of their parents or guardians, are not to be accounted invalid, but simply irregular, illegal, and in breach of the usual bond-condition that no impediment exists.

QUIETING TITLES.

We give hereafter the recent orders under sec. 52 of the Act for Quieting Titles. The former orders are rescinded. It will be seen that the chief feature under the new orders is the giving of jurisdiction to the local Masters, subject to the supervision of an inspector in Toronto, so as to enable country practitioners in contested cases, or where viva voce testimony has to be given, to attend personally and avoid the necessity of employing counsel in Toronto, or of sending their witnesses for examination.

In consulting the interests of those at a distance from Toronto, by giving jurisdiction to local Masters, it seems to have been felt that some supervision was advisable by reason of the important consequences attending the decision of the referee and the certificate of title under section 30 of the Act. When, therefore, a local Master is named as referee, one of the Toronto referees is to act as inspector, with whom the local Master may, under order 7, correspond for advice and assistance; and by order 4, the petitioner must, when he selects a local Master as referee, endorse on his petition the name of either Mr. Turner or Mr. Leith as inspector, as he may think proper.

There may be cases depending on no disputed questions of fact, but solely on difficult questions of law, or cases in which, from the large amount involved, it may be thought expedient by an applicant to have the assistance of counsel in Toronto, and that the case should be heard before a Toronto referee without the intervention of a local Master, and power is given by order 3 to refer the case at once to either of the referees. Where also a case is referred directly to a Toronto referee, some delay may be avoided which might attend a reference to a local Master, and consequent communications between him and the inspector for advice, or on non-approval of

decision or otherwise. On, reference to a Toronto referee, or indeed to any referee, he may correspond with the petitioner or his solicitor as to defects, and supplying of proof, &c. On the other hand the advantage of a local Master being selected as referee may outweigh all other considerations, where witnesses whose evidence has to be taken viva voce, reside at a distance from Toronto.

It is to be observed, that in an uncontested case the referee under order 11 is to deal with it himself, without the necessity of hearing either counsel or solicitor, with whom, however, he may, under order 12, correspond as to proofs required or as to defects in the proof.

We imagine that in cases where a widely spread and yet groundless suspicion exists, as to the validity of a title, or where it depends on or a testimony of witnesses who may die or go abroad, or where the title is so complicated as to involve much expense on each dealing with the property, the Act may be resorted to with great advantage, as also in cases where a sale is to take place in lots, or the party in possession is desirous of establishing his title as against an adverse claimant, whose claim has an appearance of right, which considerably reduces the value of the property to the true owner, and when there is no mode of barring such adverse claimant.

We should probably have enlarged our observations, but that we understand, Mr. Turner, one of the inspectors and referees, will, in the course of two or three days, publish a short treatise on the Act and the practice under it; we therefore merely give the following brief remarks and suggestions to those who may apply under the Act:

1. Consider carefully the title and the proof of it, and if it be defective do not apply-see secs. 6 & 32 & 48 of the Act.

2. In the petition, a form of which is given in the Act, state accurately the estate or interest claimed, and endorse thereon the referee selected, and if a local master and not a Toronto referee be selected, then endorse the name of a Toronto referee who is to act as inspector, (see order 3) and send the petition to him to be entered (see order 6) with his fee of $8-(see order 23).

3. After entry with the inspector, deliver to the registrar, who, if the application is under sec. 2 of the Act, will attend a judge for directions. The certificate to file with the

County Registrar will be given by the registrar of the court, and the petition then be returned to the petitioner-see order 8.

4. Deliver all deeds, proofs and matters required by sec. 5, 6 & 8, and order 10, to the referee (see order 9), -as to proof, see order 9 & 10.

The case is then in the hands of the referee for adjudication, and he will proceed according as he finds the title perfect or defective in an uncontested case, or hear the parties or take evidence in contested cases.

Alexander Leith, Esq., Barrister-at-law, has been appointed the second Inspector and Referee under the new orders. His well known ability and thorough knowledge of real property law will render him a most efficient officer, and his appointment will, we doubt not, be favorably received by the profession.

JUDGMENTS-EASTER TERM, 1867.

QUEEN'S BENCH.

Present: DRAPER, C. J.; HAGARTY, J.; and MORRISON, J.

[Saturday, Sept. 6th, 1867.] Fraser v. Grand Trunk Railway Company.— Rule absolute for new trial without costs.

Green v. Lewis.-Rule discharged.

Lodge v. Thompson.-Rule absolute to enter nonsuit unless plaintiff consent to take a rule for a new trial on payment of costs within one month.

Clarke v. McCullough.—Rule discharged, leave to appeal granted.

Gilpin v. Royal Canadian Bank.-Rule absolute for a new trial without costs.

Gibbs v. Gildersleeve.-Rule discharged. Regina. Township of Hamilton. Judgment arrested.

Farrell v. Farrell.-Special case. Postea to plaintiff. Leave to appeal granted.

Hatch (Trustee) v. Parker.-New trial. Costs to abide the event.

Barr v. Canada Life Assurance Co.-Rule to set aside nonsuit discharged.

Jacobs Clarke.-Rule to enter nonsuit discharged.

Jacobs v. Clarke.-New trial on payment of costs.

Creighton v. Fretz, et al.-Rule absolute as to Lewis Fretz, discharged as to Allan Fretz. McDonald v. McGillis. New trial without

costs.

Commercial Bank v. Harris.-Judgment for defendant on demurrer. (Morrison, J. dissenting.)

Fitzgibbon of the City of Toronto.-Not sufficient material before the court.

2. Where an application is made under the 2nd section of the Act, the Registrar is to attend one of the Judges with the petition for directions, before the same is referred for investigation.

3. A petition under the Act may, at the option of the Petitioner, be referred to any of the Officers of the Court at Toronto, or to any Conveyancing Counsel, who may from time to time be designated by the Court for the purpose; or to any of the following local Masters, viz., the Masters at Barrie, Belleville, Brantford, Brockville, Cobourg, Cornwall, Goderich, Guelph, Hamilton, Kingston, Lindsay, London, Owen Sound, Peterborough, Sandwich, Sarnia, Simcoe, Stratford, St. Catharines, Whitby, and Woodstock; or to any other of the local Masters who shall hereafter be designated.

4. To facilitate the proceedings in cases referred to the local Masters, two Inspectors of Titles will be named by the Court, for the purposes, and with the powers, mentioned in, and provided for by the 25th and 26th sections of the said Act; and on the petition are to be endorsed the names of one of the Inspectors, and of the local Master, thus: "To be referred to the Master at and to Mr. spector of Titles."

In

5. Petitions filed unindorsed with the name of a Referee are to be referred to the Referees in Toronto in rotation, or otherwise as the Court from time to time directs; but a Petition indorsed with the name of any Referee is to be referred to him accordingly, unless the Court otherwise directs.

6. Where the Petitioner desires the reference to a local Master, the Petition is to be entered with the Inspector of Titles before being filed with the Registrar as required by the Statute, and the Inspector is to note thereon the day of entering the same, adding to such note his own initials, and is thereupon to deliver the Petition to the Solicitor, or, if duly stamped, to the Registrar, to be filed.

7. The local Master shall be entitled to confer or correspond from time to time with the Inspector of Titles, for advice and assistance on questions of practice or evidence, or other questions arising under the Act or under these Örders.

8. The Registrar is to deliver to the party filing a Petition under the Act, a certificate of the filing thereof, for registration in the proper County; and thereupon the Petition is forthwith to be referred, and delivered or posted

by the Registrar, to the Referee named for that purpose.

9. The particulars necessary under the 5th section of the Act to support the Petition are to be delivered or sent by the Petitioner or his Solicitor to the Referee, and are to be forthwith examined and considered by him.

10. In every case of an investigation of the title to property under the said Act, the petitioner is to shew, by affidavit or otherwise, whether possession has always accompanied the title under which he claims the property, or how otherwise, or is to show some sufficient reason for dispensing with such proof either wholly or in part.

11. Where there is no contest, the attendance of the Petitioner, or of any Solicitor on his behalf, is not to be required on the examination of the title, except where, for any special reason, the Referee directs such attend

13. When the Referee finds that a good title is shown, he is to prepare the advernecessary tisement and the same is to be published in the Official Gazette and in any other newspaper or newspapers in which the Referee thinks it proper to have the same inserted; and a copy of the advertisement is also to be put up on the door of the Court House of the County where the land lies, and in some conspicuous place in the Post Office which is situate nearest to the property the title of which is under investigation; and the Referee is to endorse on the advertisement so prepared by him the name or names of the newspaper or newspapers in which the same is to be published, and the number of insertions to be given therein respectively, and the period (not less than four weeks) for which the notice is to be continued at the Court House and Post Office respectively.

14. Any notice of the application to be served or mailed under the 14th section of the Act, is to be prepared by the Referee; and directions are in like manner to be given by him as to the persons to be served with such notice, and as to the mode of serving the same.

15. The Inspectors and Toronto Referees are from time to time to confer with one of the Judges in respect of matters before such Inspectors and Toronto Referees, as there shall be occasion.

16. When. any person has shown himself, in the opinion of a local Master, to be entitled to a Certificate or Conveyance under the Act, and has published and given all the notices required, the Master is to write at the foot of the petition, and sign, a memorandum to the effect following: "I am of opinion that the Petitioner is entitled to a certificate of Title

(or conveyance) as prayed" (or subject to the following incumbrances, &c., as the case may be); and is to transmit the Petition (if by mail, the postage being prepaid), with the deeds, evidence, and other papers before him in reference thereto, to the Inspector of Titles with whom the Petition was entered; and the Inspector is to examine the same carefully, and should he find any defect in the evidence of title, or in the proceedings, he is, by correspondence or otherwise, to point the same out to the Petitioner, or his Solicitor, or to the Master, as the case may be, in order that the defect may be remedied before a Judge is attended with the Petition and papers for approval.

17. When the Inspector, or other Referee (not being a local Master), finds that the Petitioner has shown himself entitled to a Certificate of Title, or a Conveyance under the Act, and has published and has given all the notices required, the Inspector, or Referee (not being a local Master), is to prepare the Certificate of Title, or Conveyance, and is to engross the same in duplicate, one on parchment, and one on paper; and is to sign the same respectively at the foot or in the margin thereof; and is to attend one of the Judges therewith, and with the deeds, evidence, and other papers before him in reference thereto; and on the Certificate or Conveyance being signed by the Judge, the Inspector or other Referee aforesaid, as the case may be, is to transmit or deliver the same to the Registrar, to be signed and registered by him; and the Registrar is to deliver or transmit the same, when so signed and registered, to the Petitioner, his Solicitor, or Agent, for Registration in the proper County.

18. When a Certificate of Title or Conveyance under the Act has been granted, the Inspector or Referee may, without further order, deliver, on demand, to the party entitled thereto, or his Solicitor, all deeds and other evidences given, in the matter of the title; and is to take his receipt therefor.

19. Each of the Inspectors and other Toronto Referees is to keep a book, and to preserve therein a copy of all his letters under these Orders, and is to prepare monthly, for the information of the Profession, a memorandum of points of practice decided in matters under the Act.

20. The fees of Solicitors and Counsel, and the fees payable by stamps, for proceedings under the said Act, are respectively, to be the same as for like proceedings in other cases.

21. The Referee is, in lieu of all other fees, to be entitled to a fee of fifty cents for every deed in the chain of title, other than satisfied mortgages; and Referees who prepare the Certificate or Conveyance, are to have a fee of $4 for drawing and engrossing the same in duplicate. Besides these fees, the Referee is to have the same fees in respect of proceedings occasioned by any defects in the proof of title, which shall be mentioned in the Referee's memorandum referred to in the 11th of these

Orders, as are payable to the Master in respect of similar proceedings in suits. No further or other fee is to be payable to the Referee in respect of any of the proceedings by or before him under the said Act in an uncontested case. 22. In a contested case, the Referee is, in addition, to be entitled, in respect of the proceedings occasioned by the contest, to the same fees therefor as are payable to him for the like proceedings in suits.

23. The fee of the Inspector of Titles on entering the Petition with him is $8, and no further fee is to be paid him for correspondence, examination of the title, drawing and engrossing certificate or conveyance, or for any other matter or thing done under the petition.

24. The Applicant or his Solicitor is to pay, or prepay, as the case may be, all postages and other expenses of transmitting letters or papers.

25. Petitions under the 35th Section of the Act are to be filed and proceeded with in the same manner (as nearly as may be) as petitions for an indefeasible title; and the fees of Officers, Solicitors, and Counsel, are to be the same as in respect of the like proceedings in suits.

26. The orders of the 19th of September, 1865, are hereby rescinded.

P. M. VANKOUGHnet, C.
J. G. SPRAGGE, V. C.
O. MOWAT, V. C.

SELECTIONS.

SEALS.

The preparation of an argument in regard to an instrument, which, it was contended, was not a deed, because the seal was made by an impression upon the paper without any wax or similar substance, has led the writer into an investigation in reference to the origin and history of seals as a mode authenticating documents, which may interest the readers of the American Law Review.*

Some high authorities seem to sustain the position that such an impression alone is not sufficient; but a careful examination of their language shows, that it was sometimes used, not so much with reference to the substance upon which the impression was made as to some other element of the act, while in other cases it may be suspected that subsequent writers have been misled by disregrding this distinction.

Chancellor Kent (4 Comm. 452, 9th ed.) says, "The common law intended by a seal an impression upon wax or wafer, or some other tenacious substance capable of being impressed." This language does not literally exclude the idea of an impression on the paper alone; but his decision in Warren v. Lynch, 5 Johus. 239, although not decisive, tends to

The following pages are, however, rather a cento than an essay,-not so much an attempt at an exhaustive discussion of the subject as a collection of materials for that purpose..