SEALS. If the Norman custom establishes the American rule, an American conveyancer must use the "cera" of that age, and no inferior or different matter. This no one pretends to do. "Wax" is "an organic product of considerable importance, obtained from different sources, the chief of which is the beehive;" and "chemists are not agreed in their application of the term war to various substances which possesses waxy properties."*"Wax," says Brande,t "is a common vegetable product, forming the varnish which coats the leaves of certain plants and trees. It is also found upon some berries, ....and it is an ingredient of the pollon of flowers." lest we should be thought to wax frivolous. But this historical and scientific evidence, that the seals of the present age are not the seals of the period when the custom of sealing was established by the Normans, reduces to an absurdity the position, that the material on which the impression may be made is an essential element of the form required, or that the common law attaches greater importance to a vegetable adhesive substance a compound of resin and vermillion, or a wheaten paste, than to a pulp or paste made by grinding rags or straw. The Government of the Grand Duchy of Weimar, with a consistency with those who adhere with such tenacity to resin, wheaten forbade the use of wafers in law matters in 1716, but, with a growing wisdom, abolished this order in 1742.* But "the term wax applied 'sealing-wax' is a misnomer. No wax is used in its manufac-paste, and mucilage would do well to intimate, ture but resin, which is essentially different in properties; and there is no evidence of the use of common sealing wax of earlier date than the sixteenth century." Before it was invented, a kind of bitumen was used for sealing letters "and called terra sigillaris. It was, according to Beckman, brought from Asia by the Romans, but was first known among the Egyptians. Pipe-clay was also used for seals, as was also a cement of pitch, wax, plaster, and fat."-"The large seals on public documents are however, really made of wax; and it was natural, on the introduction of the resinous compound for sealing, letters, to apply the term 'wax' to it, especially as the chemical distinctions between such substances as resin and wax could not at the time have been very well understood." "The Great Seal of England....is said to be prepared by melting block white wax in about one-fourth of its weight of Venice turpentine. The wax of the Great Seal and Privy Seal of Scotland is made from resin and beeswax, coloured with vermillion."§ It will not be pretended that a piece of paper attached to a deed by a wafer is not a good seal. But although wafers were made by pastry-cooks long before their application of the sealing of letters, according to Beckmann, the oldest seal with a red wafer is on a letter written by Dr. Krapf, at Spires, in 1624, to the Government at Bayreuth. Wheaten paste, "with the addition of colouring matter, and sometimes of a small quantity of white of egg and isinglass,"¶ first used for sealing letters in 1624, is not the "cera" or wax spoken of by my Lord Coke, who died in 1634,-by the Barons of the Exchequer, whom Leonard reports, or by Perkins. We forbear to investigate the history and origin of mucilage, gummed seals and the like *Tomilson's Useful Arts, verb. Wax. Encyc. of Science, verb. Wax. By the context, this appears to refer to letters. ?Tomilson, verb. Sealing-wax, A deed must be signed and sealed; but a deficiency of penmanship and sealing wax may be got over by a cross and a wafer, which are sufficient for legal purposes."-The Comic Blackstone, c. xvii. p. 133. And see Davidson v. Cooper, 11 M. & W. 778. Tomilson verb. Wafer. To sum up the historical argument, then, it appears that originally the Saxon conveyancers authenticated deeds by signatures, marks, golden crosses, and sometimes pendent seals of lead; that the Normans introduced the custom of sealing with wax, properly so called, which became general or universal, although we find that a golden seal was used on a treaty by Henry VIII.; that, after the introduction of sealing-wax, a material without a single constituent element of the Norman wax, this was also used; that, upon the invention of wafers, a third material, without a single constituent element, either of wax proper or sealing-wax, was adopted; and finally, that still another material, viz., pieces of paper, with glutinous or adhesive matter upon them, has been used in modern times indiscriminately with wax, sealing-wax, and wafers. There is no statute prescribing the use of any one of these materials, or allowing the substitutions or changes recognized by usage; and while the earlier authorities and decisions show the customary use of some material capable of receiving and retaining an impression and attached to the document in some mode, no one, in terms, prescribes the use of one material rather than an another. He must be a most tenaceous adherent of a fancied necessity who objects to a new mode of sealing by impressions on paper, differing in no substantial element in form required from prior customs, and no more from the mode last introduced and adopted than that differs from those which, by repeated changes, have been successively recognized. Why, indeed, is not paper alone with an impression upon it, as well as a wafer or paper upon a wafer, or paper with an impression upon it and with gum on its under side, equivalent to wax? Like a wafer, it is a tenacious material made adhesive by moisture,† which rewhich retains the impression then made; and what conceivable distinction in substance is there between a seal made, as in Tasker v. Tomlinson. Testibu pueris in schola. THE OLD SYSTEM AT NISI PRIUS AND THE NEW. Bartlett and Bradford v. Randall, by an impression on paper afterwards attached to the deed, and the same impression made on the paper of the deed at the time of its execution? Both are impressions on paper attached to the deed. In the first case, the paper is attached to that on which the deed is written after the manufacture thereof; in the other case, it is attached to the paper on which the deed is written as a portion of the same at the time of its manufacture; while in the latter the impression or act of sealing is contemporaneous with the execution of the deed.-Am. L. Rev. THE OLD SYSTEM AT NISI PRIUS AND Much has been written lately about the The The normal system of trying causes at Nisi Prius, as it is described in all the books, and recognized in countless acts of parliament and elsewhere, is a complete system, founded on a definite theory, and perfectly harmonious in all its parts. Cases are tried before a double tribunal, a judge and a jury; the one to decide issues of law, the other to decide issues of fact. In questions of law the jury have no right to interfere; with questions of fact the judge has nothing to do, except to keep order in court while the jury are trying them. In determining what issues of fact shall be brought before the jury, the judge has no voice. The parties may, by their pleadings, raise what question they please, and in what form they please. What they choose to raise, the judge cannot keep from the jury; what they have not raised, the judge cannot originate. And when the case comes for trial, it is for the parties, represented by their counsel, to decide how they shall present their case to the jury who are to try it; what facts shall be told, what witnesses called, and what kept back; what points insisted on, and what abandoned. The judge sits in the ring as a mere referee, to see that both parties fight fair. It is true that he may have, incidentally, to decide questions of law as they arise from time to time, and to exercise the power of the court in granting or refusing applications to his discretion; applications to amend the pleadings, to adjourn the trial, to recall witnesses, and the like. It is true too, that, when the case is closed, he will have to recapitulate the evidence to the jury; and, in order that he may do so correctly, he is at liberty to put such questions to the witnesses as seem necessary to him. But otherwise he is as much a stranger to the trial as any spectator in the court. In harmony with this are two characteristic features of our system of procedurethe cross-examination of witnesses, and our strict rules of evidence. Witnesses are crossexamined not by the judge, or to satisfy the mind of the judge, but by the hostile counsel, from instructions of which the judge knows nothing, and for purposes which the judge may never understand; the object of the whole being to produce an impression on the minds of the jury. So as to our peculiar and strict rules of evidence; their necessity, as every authority states it, arises from this very method. The issues having to be decided by an unskilled tribunal, and the control of the cause being in the hands, not of an impartial judge, but of the parties themselves, it is absolutely necessary to define, with minute accuracy, what they may bring before the jury, and what they may not. The judge enforces these rules, but he has no discretion whatever as to what shall be admitted and what shall not. There can be no question that such is, in theory, the mode of trying issues of fact, according to the law of England. It is plain that, owing to the constant appeals to him in his judicial capacity to decide points incidentally arising, the judge could never be anything like a cypher in court; and, apart from his strictly official authority, the influence of a wise and able man in such a position, both with counsel and jury, must of course be immense. But we believe that until lately the two fundamental principles, that the jury alone are the judges of fact, and that the parties alone have the control and conduct of the cause, were very generally observed. Judges and counsel alike were scrupulous in sifting law from fact, and assigning each to the proper jurisdiction. The judge habitually abstained from taking any part in the case, except such as belonged to him as judge of the law and referee in the contest. And causes were ordinarily tried out in due form; addresses to the jury, examination, cross-examination, summing up and verdict following one another in the regular and unbroken sequence contemplated by law. And this is an admirable mode of trial; indeed, we believe that in the long run it is the only system by which justice can be done before such a tribunal. The tribunal being one wholly untrained in judicial inquiry, this system provides that the case in court [Prac. Ct. THE OLD SYSTEM AT NISI PRIUS AND THE NEW-ADSHEAD V. GRANT. shall be conducted by men who thoroughly know the case behind, and know what it is desirable to bring forward, and what it is not, and who are chosen for their special skill in presenting facts to the minds of a jury; and thus it secures a thorough investigation of the case. Moreover, it peculiarly guards the dignity of the judge. The judge reigns, but does not rule; he is first in dignity, but not first in power; he presides over the inquiry, but has no voice in its result. This is a somewhat delicate position, when filled by a man of energy, and in the presence of zealous counsel, who have nothing but the verdict of the jury in view; and it is obvious that a strict adherence to the order of proceedings, and a strict observance by each party-judge, jury and counsel of the province which theoretically belongs to each, is the surest way to avoid any collision or misunderstanding between them. But this regular and formal mode of trying out cases has one drawback-it is not always the quickest mode. Counsel may waste time by tedious speeches, or needless elaboration of evidence, or vague, fishing cross-examination; the judge may often see a short cut over a stile much shorter than the high road, some mode of getting at the facts quicker than the regular one, some way of disposing of the case without trying it out; and the one object in all our courts now is to save time. They are burdened with arrears, the judges are pushing a Sisyphus' load up hill. There are, of course, differences between judges.. They, like other men, are not all equal in self-control, in patience, in temper, in discretion, and some have shown themselves grievously deficient in these qualities. But the main cause of the great change which has taken place, is the desire to get through the work as quickly as possible. The result is, that instead of cases being for the most part tried out in all form, like a game of chess, as they once were in England, and as they still generally are in Ireland, it is not one case in ten that is tried at all; they are forced to a compromise, or a reference, or something to drive them out of court. If a case is tried, it is commonly tried in a rough-and-ready fashion; the one object is to get the two stories known, and the facts on the judge's notes, as fast as possible, regularly, irregularly-any how. As for the solemn order of procedure, the sifting of law from fact, and distinguishing the functions of the judge, jury and counsel in the old-fashioned way, there is no time for all that. Cross-examination, which, to be of any real use, must be slow, cautious, tentativemust win, if at all, not by assault, but by the patient and covert labour of the engineer, and must therefore occupy time, is being practically abandoned. No one familiar with Nisi Prius trials will think that we have exaggerated the change which has taken place and is still going on in the conduct of business. We believe this to be a most serious evil; for we hold that cases before a judge and jury can only be fairly tried in the old strict fashion, all parties adhering to their several functions. But we are not much inclined to blame judges. or counsel for the pass that things have come to; they have only acted on the belief that it is better to settle many cases somehow than a few cases well. The remedy must come from the Legislature. In the first place, whether by adding to the number of judges, or by redistributing their work, or both, more judges for Nisi Prius must be provided. In the second place, trial before a jury is by far the slowest of all possible modes of trial, and is by no means in all cases the most suitable. It would be an enormous saving of time, and in the opinion of many a great improvement also in the administration of justice, if many cases now tried before judge and jury were tried before a judge alone. Instead of, as now, trial by jury being in all cases the rule, with only a power to try before a judge by consent, it may well be questioned whether, in many large classes of cases, the trial should not be before a judge, unless either party specially applied for a jury. This system works admirably in the Divorce Court, and in the County Courts. At any rate it would be a less evil to change the tribunal at once, than, as at present, to retain the tribunal and abandon the procedure which can alone make that tribunal a safe one. -Solicitor's Journal. UPPER CANADA REPORTS. PRACTICE COURT. (Reported by HENRY O'BRIEN, Esq., Barrister-at-Law, Reporter in Practice Court and Chambers.) ADSHEAD V. GRANT 29, 30 Vic. cap. 53, sec. 98-Seizure under fi. fa. goodsClaim by Collector for taxes-Priority. A sheriff returned to a ven. ex. and fi. fa. residue against goods, that he had made $50, out of which he had paid a collector of taxes $48 39, claimed for taxes due by defendant at the time of the seizure under the writ, on land upon which the goods were, and of which the sheriff had notice prior to the sale, and that he had retained balance towards his fees, &c. No distress had been made by the collector. Held, that the sheriff must, nevertheless, account to the execution creditor for the $50, because a distress by the collector is a necessary antecedent to obtaining the benefit of the statute. [P. C., E. T., 1867.] E. Martin, last term, obtained a rule on the sheriff of the United Counties of Prescott and Russell, to show cause why his return to the writ of venditioni exponas for part, and alias fieri facias for residue, should not be quashed, because it contradicted the return made by him to the previous writ of fieri facias against goods, and contradicts also the said writ of venditioni exponas and fieri facias for residue, and because the return complained of was vague and uncertain, and did not show under what writ the goods were seized and sold, or what goods were sold; and why he should not make a proper return; or why he should not pay the plaintiff, or bring into court the sum of fifty dollars mentioned in the return, Prac. Ct] ADSHEAD V. GRANT-HERR V. DOUGLASS. or so much thereof as should remain after deducting his fees, but without deducting the taxes mentioned in the return; or why, if the taxes should properly be deducted, he should not pay to the plaintiff or bring into court the balance, after payment of the taxes and sheriff's fees, and amend the return made by him as aforesaid according to the facts; and why he should not pay the costs of this application The return to the original fi. fa. against goods was, "Goods on hand to the value of $20, and nulla bona as to the residue;" and the return to the second writ was, "I have caused to be made of the goods $50, out of which I have paid to the collector of taxes for the municipality of Longueuil, in which the said goods and chattels were at the time of the seizure and sale thereof by me, the sum of $48 39, claimed by him for taxes of the lands and premises whereon the said goods were taken in execution, and of which I had notice from him prior to the sale-due by the defendant to the municipality at the time of the seizure-and I have retained the sum of $160, the residue thereof, towards my own fees; and that the defendant has no other goods, &c., whereof, &c." H. Cameron, during this Term, showed cause. He filed the affidavit of the sheriff, which stated the delivery of the original fi. fa. to him on or about the 27th November, 1866, endorsed to levy $1,926 34 for debt, and $63 50 for costs, besides interest, sheriff's fees, &c; a seizure made of certain goods, and a return of the same being on hand to the value of $20; the delivery of the ven. ex. and fi. fa. for residue to him on the 17th December, under which he sold the goods so seized for $50; the seizure of the goods on land of the defendant in the town of L'Orignal; the notice by the collector of the township of Longueuil to the sheriff, that the taxes for the past year, charged on the land, amounting to $48 39, were due, and that he required payment of the same to be made or secured to him out of the proceeds of the goods before the removal of the same from the land; the giving of the undertaking by the sheriff to pay the taxes, and the sale of the goods for $50; and his belief that this amount was rightly paid by him for taxes, and that his return is correct; and the conclusion was, And I am advised and believe that the right of the collector [of the township] to be paid the said taxes arises under the English statute 43 Geo. III. cap. 99, sec. 37, and the Canadian sta tute 29 & 30 Vic. cap. 53, sec. 98, the said defendant being a non-resident owner of lands." Martin supported the rule. What the collector did was not a seizure by him: Arch. Pr. 2 edn. 619; Nash v. Dickenson, L. R. 2 C. P. 252, and the collector could not take goods in the custody of the law. ADAM WILSON, J.-The affidavit is very obscurely worded. It is stated that the lands on which the goods were seized by the sheriff is situate in the town of L'Orignal, and again that it is situate in the township of Longueuil; and that the defendant does not reside on the land, but two or three miles distant from it; and from this it is desired, in connection with the last paragraph of the affidavit, that it should be assumed the defendant was a non-resident owner of the land, and, as such [C. L. Cham. non-resident he had required his name to be entered on the roll, under the 29 & 30 Vic. cap. 53, sec. 98, or the prior act of the Consolidated Statutes for Upper Canada, cap. 55, sec. 97; and that (assuming the roll to have been given to the collector) the collector had duly made a demand on the defendant for payment of the taxes, so as to be entitled to distrain. I cannot take all this for granted. But even if it were true, I am not of opinion that the collector has the right to forbid the removal of the goods by the sheriff, who acts under an execution. The statute enables the collector to make distress of any goods and chattels which he may find upon the land;" and if he make distress, then "no claim of property, lien or privilege shall be available to prevent the sale, or the payment of the taxes and costs out of the proceeds thereof;" under which latter words it is very probable the distress by the collector would supersede, to the extent of the taxes, the prior seizure of the sheriff under the execution; but the mere notice by the collector is not to have this effect. In the case of landlords, under the 8 Anne, cap. 14, the provision is very different: it is, that "no goods on any land leased for life, &c., shall be liable to be taken by virtue of an execution on any pretence whatsoever, unless the party at whose suit the execution is sued out shall, before the removal of the goods from the premises by virtue of the execution, pay to the landlord all such sums as are due for rent for the premises at the time of taking such goods by virtue of the execution, provided the arrears do not exceed one year's rent, &c." In the absence of a distress by the collector, I must, even if the return were sufficient in other respects, direct the sheriff to return and account to the execution creditor for the $50 produced by the sale of the goods. Rule absolute. COMMON LAW CHAMBERS. (Reported by HENRY O'BRIEN, Esq., Barrister-at-Law, Reporter in Practice Court and Chambers.) HERR V. DOUGLASS. Irregularity or nullity-Waiver-Laches in taking out and serving order-Delay in application to set aside judgment -Second application on same or different grounds. The defendant on 26th March, 1866, signed judgment of nom pros. against plaintiff for costs for not proceeding to trial pursuant to a notice for that purpose. Plantiff on 3rd April, 1866, obtained a summons to set the judgment aside, which was made absolute on 16th June, but the order was not taken out until 22nd October following, nor served until the 29th. This order was afterwards set aside by the full court as having been waived by delay, whether the judgment was void or only irregular. The plaintiff obtained a second summons to set aside the judgment, &c. upon the ground that there was nothing to warrant the defendant in entering it; but held 1. That the objection to the signing of the judgment could be waived and that therefore the judgment could not be considered as a nullity. 2. That the judgment must be viewed as entered on 26th March, 1866, of which plaintiff had immediate notice, and that the lapse of time in making this application, was a waiver of any irregularity in or objection to the judgment. 3. That even if the judgment were void, and the plaintiff not concluded by his laches, his once obtaining an order to set aside the judgment, which order he virtually abandons, precludes him from again applying-and semble, that parties should not be ha assed with repeated applications on the same grounds; and if on different grounds, known at the time of the first application, such grounds cannot be urged on a subsequent application. 4. That when there is a doubt as to whether a proceeding is irregular or a nullity, the defect is to be viewed as an irregularity the tendency of the cases being to consider defects merely as irregularities. [Chambers, May 23, 1867.] Ejectment summons was issued on the 23rd September, 1865, and was served on defendant on the 25th September. The affidavit of plaintiff shewed that at the time the writ was served, defendant desired that no further proceedings should be taken towards recovering possession of the lands, and that no more costs should be put on him, and agreed, if plaintiff would do so, that he, defendant, would voluntarily leave the premises; and it was then agreed that plaintiff should go no further in the action, and the defendant promised in consideration thereof that he would not defend the suit, and would leave voluntarily within about three months. About the 10th of October defendant did leave the premises, and, as the plaintiff was informed. went to the United States; it being distinctly understood between defendant and plaintiff, that all the proceedings in the suit should cease on both sides, and that within the time aforesaid defendant should yield up possession. It appeared from the affidavit of Mr. Moore, acting for the plaintiff's attorney, that judgment for not proceeding to trial pursuant to twenty days notice was signed against the plaintiff on the 26th March, 1866, and that execution for costs was issued on the same day; that before judgment was entered he twice notified the partner of the defendant's attorney that application would be made to set the judgment aside if entered, on the ground that it had been agreed between the plaintiff and defendant, that defendant should leave the premises voluntarily, and in consideration thereof, all further proceedings should be stayed. Mr. Gwynne, by his affidavit dated 16th March, 1867, stated that on the 3rd April, 1866, he obtained a summons calling on defendant to shew cause why the judgment entered by the defendant should not be set aside with costs, on grounds disclosed in papers and affidavits then filed, which summons was enlarged from time to time until the 16th of June last, when it was finally argued before Mr. Justice Hagarty, who in the latter end of June delivered judgment, directing an order to issue setting aside the judgment with costs. Through inadvertence the order was not taken out until 22nd October, when the judge signed it as of the 16th June, and it was served on 29th October. Mr. Gwynne in his affidavit also referred to the judgment as having been entered without any authority of law whatever to justify the entry thereof; and he had no idea that the not taking out and serving the order would be considered an abandonment of the order. That in Michaelmas Term an application was made to set aside the order, on the ground, amongst others, that the said order, even if properly made, had lapsed and been abandoned by reason of the delay and laches of the plaintiff in issuing and serving the same, and in the sittings for judgment after Hilary Term last past the court caused a rule to issue discharging the order of the 16th of June, solely on the strict rule of [C. L. Cham. practice, that the laches which had occurred in taking out and serving the order did constitute an abandonment thereof. After stating that there was no intention of abandoning the order of Mr. Justice Hagarty, and that the delay in taking it out occurred from inadvertence, and that plaintiff was proceeding against defendant as an overholding tenant, the affidavit concluded to the following effect: "the ground on which the judgment is sought to be set aside, is, that the writ of summons was issued and served and appearance thereon entered in the vacation before Michaelmas Term, 1865, and that defendant's attorney, about the 26th March, 1866, entered judgment professedly under sanction of the 227th section of the C. L. P. Act, but in reality without the warrant or sanction of any law to justify the entering thereof, and that therefore the said judgment is not merely irregular as being entered in contravention of the practice of the court, but is a nullity, as being unsanctioned by the authority of any law." Upon shewing the above facts, the plaintiff obtained a summons on 16th March, 1867, calling on the defendant to shew cause why the judgment entered in this cause upon the 26th day of March 1866, and the execution issued thereupon, and all proceedings had thereunder, should not be set aside with costs, upon the ground that the said writ having been issued and served and appearance thereto filed in the vacation before Michaelmas Term, there was no authority or warrant in law justifying the entering of the said judgment and issuing execution thereon. Robert A. Harrison shewed cause. The cases cited are referred to in the judgment of RICHARDS, C.J.-The papers filed do not shew very distinctly the ground on which the judgment was entered. The only clear reference to it being in Mr. Gwynne's affidavit, wherein he states that the judgment was entered professedly under sanction of the 227th section of the Common Law Procedure Act. No copy of the judgment roll or other papers shewing how or for what the judgment was entered, have been filed on this application. Nor does it appear on what ground the order of Mr. Justice Hagarty, setting aside the judgment, was made. The affidavits referred to on that application, would rather point out that the proceeding was objected to as being against good faith, as the entry of the judgment was contrary to defendant's agreement set forth in the affidavits. There is sometimes a difficulty in distingushing between a nullity and an irregularity. Macnamara in his book on nullities, at page 3, says of a nullity, "Perhaps it may be defined as a proceeding that is taken, (1) without any foundation, (2) or that is essentially defective, (3) or that is expressly declared to be a nullity by a statute." As illustrating the first ground, he refers to signing of judgment before appearance entered. That, according to the old practice, was wholly unwarranted, as there was no person before the court against whom the judgment could be signed, and thus the whole foundation of the proceedings was wanting. As to the second ground, pleas without counsel's signa |