as it created a class of men that might protect them from the ambition and supremacy of the nobles. In these circumstances, boroughs began to resume their ancient importance, such as they had enjoyed in the times of the Saxons. Men who had hitherto lived on the land belonging to the lords of the castles, and had sacrificed many of their liberties for bread and protection from the warlike barons, for whom they had been called upon to fight, now found that by union among themselves in the boroughs, they might secure bread by industry, and protection ahd liberty by mutual aid. Multitudes, therefore, forsook their feudal subservience to enjoy almost independent citizenship. Villeins, (bondmen) joyfully escaped to take their place on a footing of equality with freemen, and in the reign of Henry II., if a bondman or servant remained in a borough a year and a day he was by this residence made a free man. * It must be borne in mind that among our Saxon and Norman ancestors, places which were called boroughs at this period, were fenced or fortified. It is evident that the increase of popular liberty and social progress in these boroughs must have been favourable to the developing of the fundamental principle of trial by jury, and that the determination of questions of fact by the people themselves, could be more impartially and thoroughly carried out, in places where the people were protected from the violence of the powerful barons, who lorded it over the country districts. Then again, trial by jury, by the security it afforded against wrong, promoted in its turn the growth of freedom and wealth in the boroughs, and from them a civilizing influence continued to spread over the country. The minds of men becoming more enlightened, the truth of a reasonable method of deciding legal questions was enabled to triumph over barbarous customs among the people themselves. The several methods of trial and conviction of offenders, established by the laws of England, were formerly more numerous than at present, through the superstitions of our ancestors, who, therefore, invented a considerable number of methods of purgation or trial, to preserve innocence from the danger of false witnesses. They had a notion that God would always interpose miraculously to vindicate the guilt less. 1. By ordeal; 2. by corsend; 3. by battle. Now-a-days, people may laugh at the idea of suitors, for instance, fighting in a mortal combat sanctioned by law; but one of the laws of William the Conqueror forbid the clergy to fight in judicial combats, without the previous permission of their bishop. To show how deeply rooted the law was at one time in England, it was not, although it had fallen into disuetude, repealed until about 1818. In 1817, a young woman, Mary Ashford, was believed to have been ill-used and murdered by Abraham Thornton, who, in an appeal, claimed his right by his wager of battle, which the court

*Chambers.

allowed; but the appellant (the brother of the girl) refused the challenge, and the accused escaped, being ordered "to go without day" 16 April, 1818. If such events took place in 1818, what does the reader suppose must have been the state of things in the Middle Ages. To remedy the evil of suitors fighting out their lawsuits, the trial by the grand assize is said to have been devised by Chief Justice Glanville, in the reign of Henry II., and it was a great improvement upon the trial by judicial combat. Instead of being left to the senseless and barbarous determination by battle, which had previously been the only mode of deciding a writ of right, the alternative of a trial by jury was offered. But the present judges of assize and nisi prius for administering civil and criminal justice are more immediately derived from the statute of Westminster, in the reign of Edward I.* These came instead of the ancient justices in Eyre, justiciarii in itinere, that had been regularly appointed in 1176 by Henry II. to make their circuits once in seven years for the purpose of trying causes. The establishing of the assize, began a new era in the legal history of England. From this date commenced the real permanent foundation of trial by judge and jury throughout the country -the judge to decide the law, the jury the facts. The record of the struggle of the system against its foes would fill a volume The institution triumphed in the end. In an interesting summary of this subject, a recent writer observes :

"In the time of the Anglo-Saxons a man who sued in the King's Court for lands, refused to be bound by the sentence until his 'peers' had decided his right, and summary justice was visited on those in authority who tried cases contrary to the 'custom,' even then ancient. In the days of William the Conqueror, even a bondman, when he claimed freedom, was entitled to a trial by the country,' and its refusal to a suppliant implied that he was under the ban of 'outlawry.' Trial by jury was secured to every heir-at-law by Henry II., and extended to every person, without distinction, shortly afterwards. In every suit touching inheritance between Crown and subject, it has always been an imperative right, and the attempt to render its attainment difficult, by de

lay, denial, or sale,' led to the most emphatic IV., when a subject had been deprived of a jury passages in Magna Charta. In the days of Edward by Act of Parliament, the very statute was repealed and the judgment pronounced under it declared void; this being effected under the express provisions of those Acts which confirm to the people of England the great Charter of their liberties for evermore,' and which ordain that 'every judgment and every statute contrary thereto, shall be holden for nought.' In the reign of Henry VII., the Acts which gave certain judges statutory permission to try causes without juries, 'at their discretion,' were set aside-'a warning to all future Parliaments, judges, and others, that they deprive no man of the precious trial by writ of right, or the verdict of twelve men.' In 1620,

* Statute, West, 2, 13, Edw. I c. 30.

the judges themselves when called on to plead before a tribunal where disputed facts would have been decided without a jury, refused to appear, claiming the benetit of Magna Charta, as free Englishmen.' When the Star Chamber tried to overrule and stultify the verdicts of juries, the attempt led to the Petition of Right-that second Magna Charta; and the blow aimed at trial by jury in arbitrary imprisonment and confiscation of property and of civil rights, without that mode of trial, led to revolutions which shook the kingdom to its centre, while all the cruel acts of Jeffreys and other corrupt judges, were followed by reversal of their decrees and the rehabiliation of the families of those whom they had judicially murdered. When the verdicts of juries were perverted, so as to carry consequences which the jurors did not intend, the legislature at length stepped in and placed the law beyond the possibility of future cavil and misconstruction."-Trial by Jury, the Birthright of the People, &c., p. 163.

The reader will thus perceive that the common law is grounded on the general customs of the realm. "Indeed it is one of the characteristic marks of English liberty, that our common law depends upon custom, which carries with it this internal evidence of freedom," writes Blackstone, "that it was introduced by the consent of the people, and has been jealously preserved by them." The common law is the result of long study, observation, and experience; and it has been refined by learned men in all ages. It overrides the canon law, and the civil law, where they go beyond it, or are inconsistent with it. The principle of trial by jury, without alluding to previous compacts, was confirmed by the Act of Settlement (1 William & Mary, c. 2), and declared to be the birthright of the people of England.*

(To be continued.)

RECENT DECISIONS.

RAILWAY COMPANIES

Walker v. The Great Western Railway Co., 15 W. R., Ex., 769.

This very short case decides that the general manager of a railway company has authority to contract for medical attendance upon a person injured upon the company's line so as to bind the company. The plaintiff was a surgeon, and was called in by the direction of the defendants' general manager, to attend a man who had been hurt in an accident on the company's railway. The plaintiff brought his action against the defendants for remuneration for his services, and the defence was that the general manager had no authority to pledge the credit of the defendants by such a contract. It would seem pretty clear, according to the ordinary rules, that the defendants would be bound by a contract of this kind made by

* As our Essay is but an outline of the subject, we refer the reader to several learned works for full details respecting Trial by Jury, by Mr. Forsyth. Q C.. Mr. Serjeant Pulling, and Mr. Erle; also to" Hallam's Middle Ages," vol. ii., chap. vii., and to the able treatise entitled "Trial by Jury, the birthright of the people of Englan 1."

their general manager. There was, however, one case, Cox v. The Midland Railway Co. (3 Ex. 268) which certainly gave some colour to the defendants' contention. It was held in that case that a station master of a railway company had no authority to bind the company by contracting for medical attendance to be supplied to a passenger injured in an accident. The defendants relied upon this decision. The court held that the defendants were liable on the contract of their general manager, and refused to grant even a rule nisi for the purpose of having the question argued. Besides the point actually decided, which is not perhaps of very much importance, this case may also be taken as an example to show that companies have practically greater freedom to contract by agreements not under seal than they had when Cox v. The Midland Railway Company was decided. It was then thought that a company could, with some few exceptions, only contract under seal, but since then much greater latitude has been allowed them in this respect, and Walker v. The Great Western Railway Company is an illustration of this gradual change in the law.

NOTICE OF TRIAL AFTER POSTPONEMENT.
Claudet v. Prince, 15 W. R. B. C. 794.

In this case a point of practice arose, and the decision is of the more importance inasmuch as it completely overrules what appears to have been the old practice.

The question was simply whether, if the trial of a cause for which one notice of trial for London has been given is postponed to the next sittings in London by a judge's order obtained by the plaintiff, it is necessary for the plaintiff to give a new notice of trial. It is clear that a fresh notice of trial is not necessary where a cause is made a remanet in consequence of its not being reached, or if a cause is postponed by a judge's order made at nisi prius: Shepherd v. Butler, 1 D. & R. 15. So also if an injunction is granted by the Court of Chancery to restrain the plaintiff from proceeding with an action, no new notice is necessary when that injunction is dissolved; Stockton and Darlington Railway Company v. Fox, 6 Ex. 127. Upon principle the same rule ought to apply where a cause has been postponed by a judge's order made at chambers. There were, however, two old cases and one new one, which were authorities to show that a fresh notice was absolutely necessary. The court held, notwithstanding these cases, that a fresh notice was not necessary, and laid down the rule which had before been applied in the case of injuctions; that it was not necessary for the plaintiff to give notice of trial again, as all parties were in statu quo when the cause came on for trial at the appointed time. This is far the most reasonable rule which could have been laid down, and it is well that the court did not allow the authority of the old cases to govern their decision.

UPPER CANADA REPORTS.

COMMON LAW CHAMBERS.

(Reported by HENRY O'BRIEN, Esq., Barrister-at-Law, Reporter in Practice Court and Chambers.)

GLEASON V. GLEASON ET AL.

29 & 30 Vic. cap. 42, sec. 6-Several fi. fa. goods in sheriff's hands-Return of a subsequent before a prior writ.

A. and then B. placed writs of fi. fa. in the hands of a sheriff, against the goods of C. Notwithstanding that the goods were apparently exhausted, A. refused to withdraw his writ or take a return of nulla bona, whereby B. was prevented, by the operation of 29 & 30 Vic. cap. 42, sec. 6, from proceeding against lands; and the sheriff, feeling bound by that Act, declined to return the second writ as long as the first remained in his hands.

Under these circumstances an order was made on the application of B. directing the sheriff to return the second writ nulla bona.”

Semble, that the frst execution creditor should have notice of such an applica ion.

Remarks upon the embarrassment resulting from the operation of the above statute.

[hambers, June 1, 1867.]

A summons was obtained calling on the sheriff of the County of York to shew cause why an attachment should not issue against him for not returning the fi. fu. against goods in this cause.

It appeared that this writ was delivered to the sheriff on the 3rd of December last, at which time there was another fi fa. against the goods of these defendants, at the suit of one Reed, in the sheriff's hands.

It was not a year since the first writ was given to the sheriff-both of these writs were therefore still in full force.

It was admitted that the defendants had no goods or chattels, and that Gleason, the second execution creditor, desired to have his writ returned "no goods," so that he might proceed by execution against the lands of the defendants

The sheriff declined to return this second execution, because the 29 & 30 Vic. cap. 42, sec. 6, enacts that "No sheriff shall make any return of nulla bona either in whole or in part to any writ against goods, until the whole of the goods of the execution debtor in his county have been exhausted, and then such return shall be made only in the order of priority in which the writs have come into his hands"-and the first execution creditor refused to withdraw his writ from the sheriff's hands or to take a return of nulla bona, "as he believes by keeping it in force in the sheriff's hands, he will get the whole amount of the execution."

Leih shewed cause for the sheriff, referring to the section of the act above quoted, and (the learned judge having on the argument expressed an opinion that the first execution creditor should be a party to or have some notice of the application) he filed the refusal of the first execution creditor to withdraw his writ or to take a return of nulla bona.

Ferguson, contra.

ADAM WILSON, J.-This section of the act is calculated to give great embarrassment to sheriffs and to create great difficulty to execution creditors.

A first execution creditor determined to protect the debtor, might, under various pretexte, retain his writ by renewals in the sheriff's hands for years, and hamper all subsequent creditors in

[C. L. Cham.

proceeding against lands, although it was notorious there were either no goods or but an insignificant amount of goods to be seized upon the first writ, and that none of the subsequent creditors would get a farthing from the personal estate of the debtor. Yet because the first creditor must have his writ first returned and so come in first upon the lands, all the others must wait just as long as he could contrive to baffle them, although it was also notorious that there were lands sufficient to satisfy all the creditors together.

It is an inconvenient method of securing to the creditor, first against goods, the like rank against lands to which he is plainly entitled, and from which rank he was so often excluded, because there happened to be some trifle of goods to apply on his writ and on his writ alone. In consequence of which, while his writ was prevented from being returned, all the writs after his were at once returned no goods," and the subsequent creditors were enabled to issue writs against lands and displace the first creditor from his just priority.

A simpler way would have been to have authorised the fi. fa. to issue against both goods and lands at once, with a stay of proceedings against lands till the goods were exhausted-in which case no difficulty of any kind would ever arise, and one execution would answer in every case instead of two.

In this instance, I think it appears that the goods of the debtor in the county of York have been exhausted, and therefore I think I should order the writ of this plaintiff to be returned, because, notwithstanding this exhaustion, the first execution creditor refuses to withdraw his writ or to take a return of nulla bong, and it is quite plain his conduct should not be allowed to delay this plaintiff.

I am inclined to think that though the sheriff may be prevented by this provision from returning, of his own mere motion, a second or subsequent writ, in cases within the act, until he returns the first writ, the court is not necessarily excluded from directing or controlling its own process, as in Omealy v. Newell, 8 East. 364, where it was held that though the plaintiffs were prohibited since the 12 Geo. I. cap. 29, from arresting defendants without an affidavit of debt first made, this did not prevent the court or judge from making an order to hold to bail,

without the affidavit and other requisites which are prescribed in respect to arrest by the mere act of the plaintiff himself.”

This plaintiff has served a notice on the sheriff to return his writ, then a rule to return it, and now a summons calling upon him to shew cause why he should not be attached for not doing so. and he has been engaged in this business for the last four weeks; yet I am not able to give him costs, for I cannot say the sheriff is to blame in requiring the aid of the court or a judge to interpret this clause, nor can I say that he could have acted at all without the direct order of the court or judge to do so, nor can I give the sheriff his costs for appearing here and explaining the case, nor can I give them to the first execution creditor who has also been affected by this proceeding in which he may or may not take any concern.

C. L. Cham.]

I must also add I am not quite satisfied with my own part in this curious proceeding. But according to the best judgment I can form, I shall order the sheriff to return the writ in question, "no goods." (although Reed's writ is still in his hands, because the goods of the defendants have, as I think, been exhausted, and because Reed will not withdraw his writ nor take a return of "no goods" under these circumstances) and if such return be made, the summons will be discharged. But if the sheriff do not make such return in four days, the order will go for an attachment for his contempt in not returning the writ.

HERR V. DOUGLASS.

Examination of plaintiff on judgment against him for costs -27, 28 Vic. cap. 25.

Held, that a defendant cannot, notwithstanding 27, 28 Vic. cap. 25, on a judgment obtained against a plaintiff in an action of ejectment, obtain an order to examine the plain. tiff as to his estate and effects, &c.

[Chambers, July 20, 1867.]

A summons was obtained on behalf of the defendant, calling on the plaintiff to shew cause why he should not attend before a Deputy Clerk of the Crown, and submit to be examined as to estate and effects, &c., on a judgment recovered against him for the costs of the defendant in an action of ejectment.

Osler, shewed cause. There is nothing to authorise the order asked for here: Hawkins v. Paterson et. al., 23 U. C. Q R 197; 1b., 9 U. C. L. J. 275. The late Act of 27 & 28 Vic. cap. 25, which is relied upon by the defendant does not give the power, whatever the intention may have been.

MORRISON, J.-I do not think the Act referred to has the effect contended for by the defendant particularly in an action of ejectment as this was. I must therefore discharge the summons, but it will be without costs.

Summons discharged without costs.

TOWNSEND V. STERLING. Costs-C. L. P. Act, sec. 324-Verdict in seruction for 5s.Damages on de nurrer remitted.

A declaration contained two counts, one for seduction of the plaintiff's daughter, and the other for necessaries sup plied for the child. Plea of not guilty to first count, demurrer to second. This issue in fact was tried first and verdict for plaintiff for five shillings. Judgment was afterwards given for plaintiff on the demurrer, whereupon plaintiff remitted on the roll all damages, without excepting costs, under the second count, and signed judgment for the 58. and full costs taxed. On a summons for a revision of the taxation, &c., it was held that:1. The plaintiff was entitled to the costs of the demurrer to the second count, although it would have been the more correct form to have excepted the costs in the remittitur. 2. An action of seduction may, under some circumstances, be brought "to try a right," or the grievance therein complained of, may be "wilful and malicious," and therefore as the verdict was under $8, and the judge did not certify, the plaintiff was not entitled under C L. P. Act, sec. 324, to any costs whatever, but

3. As the statute is confined to a verdict or assessment the plaintiff was entitled to full costs of the demurrer. [Chambers, Aug. 7, 1867.]

In this case the declaration contained two counts; the first for the seduction of the plaintiff's daughter; the second for clothing and necessaries furnished for the child of the defendant, born of the plaintiff's daughter.

[C. L. Cham.

The pleas were, not guilty to the first count, and a demurrer to the second count.

The issue in fact was tried first. The award of process was as well to try the issue in fact as to assess the damages in the issue in law. The verdict was that the defendant was guilty on the first count, and damages were assessed on that count over and above the costs of suit, at five shillings.

Judgment was afterwards given for the plaintiff upon demurrer to the second count, and then the plaintiff by the roll remitted to the defendant all damages sustained by him on occasion of the premises in the second count, and prayed judgment and his damages sustained on occasion of the premises in the first count, and judgment was then given for the plaintiff "for the said moneys by the jurors aforesaid assessed, and for the sum of £27 19s. 9d., for his costs of suit, by the court here adjudged of increase to the plaintiff; which damages and costs on the whole, amount to £28 4s. 9d."

McMichael, obtained a summons calling on the plaintiff to shew cause why the taxation of costs in this cause should not be set aside, and the master be ordered to revise the same, on the ground that full, costs of suit had been allowed when the verdict rendered was for five shillings only, and the plaintiff should have had no more costs than damages, and on the ground that the master had taxed costs, on the second count, of the declaration and the demurrer thereto, no damages having been assessed on that count, and judgment is entered only on the second count, no judgment is entered (sic) no damages awar ded, but all damages on the same are remitted on the judgment roll; and why the writ of fieri facias should not be set aside or amended, so as to reduce the levy to the amount of damages assessed, and the sheriff be ordered to withdraw from the seizure of the goods of the defendant, The case was argued before A. Wilson, J., before the vacation.

J. A. Boyd, shewed cause.

This application is made under the statute 22 & 23 Car. 11., that there should have been no more costs than damages; but that statute does not apply to an action for seduction, which this is. Batchelor v. Bigg, 3 Wils. 319; S. C. 2 W. Bl. 855; Peddle v. Kiddle, 7 T. R. 660.

The statute of Charles is not now in force in England, though it is in force here, and therefore section 324 of the C. L. P. Act should be construed in pari materia. Pedder v. Moore, 1 Prac. Rep. 117.

The plaintiff had the right to apportion his verdict and remit nominal damages on the second count. Burton v. Law, 16 L. T. N. S. 385; Preston v Peeke, E. B. & E. 336.

The plaintiff is entitled to full costs on the demurrer, under sec 316 of the C. L. P. Act. Kinloch v. Hall, 26 U. C. Q B. 134; McMartin v. Thompson, Ib 334; Taylor v. Rolfe, 5 Q. B. 337; Bentley v. Dawes, 10 Exch. 347; Arch. Prac. 12th edition, 935.

There having been an assessment of damages, there should be full costs under sec. 328 of the C. L. P. Act, on the second count. Jones v. Wing, 3 O. S. 37; Kilborn v. Wallace, 3 0. S. 17; Ferrier v. Young, Ib. 140; Mahoney v. Zwich, 4 O. S. 99.

Such an action as this cannot be brought in the Division Court: Con. Stats. U C. cap. 19, sec. 54; nor in the County Court: Ib. cap. 15, sec. 16. If the judgment roll be wrong, it may be amended.

On

McMichael supported the application. arrest of judgment the plaintiff is not entitled to costs of those issues which have been found for him. Prew v. Squire, 20 L. J. C. P. 175; 10 C. B. 912; Abley v. Dale, 21 L. J. C. P. 104; 11 C. B. 378. Costs are in reality considered as damages. Giles v. Hart, 2 Salk. 622; Marriott v. Stanley, 9 Dowl. 59, 2 Sc. N. R 60; for if a statute give double or treble damages, the costs as part of the damages should also be doubled or trebled: Tidd's Prac. 957, 962; 2 Inst. 289. The statute in question applies to all actions of trespass and on the case: Morrison ▼. Salmon, 9 Dowl. 387; 2 Sc. N. R. 60; Gillett v. Green, 9 Dowl. 219; 7 M. & W. 347.

ADAM WILSON, J.-It appears on this record that the jury gave the five shillings damages on the first count only, and that they assessed no damages on the second count, although they were summoned to do so. Yet when summoned

they were sworn merely "to try the matters in question between the parties, as to the issue within joined to be tried by the country," that is, to try the issue on the first count.

The provision as to costs upon demurrer is, that the party in whose favour the judgment is given, shall also have judgment to recover his costs in that behalf:" C. L. P. Act, sec. 316; and a judgment on demurrer is erroneous which does not award the costs of it. Gregory v. The Duke of Brunswick, 3 C. B. 481.

The judgment on demurrer is final or interlocutory, in the same manner and in the same cases as a judgment by default. The plaintiff therefore on getting judgment in his favour on demurrer before the assessment of damages upon it, has only an interlocutory judgment; he cannot have final judgment till after an assessment has been had, or until he by some entry on the record shews that he does not desire to prosecute his case further.

Whenever final judgment is given on the record these costs become taxable. If the plaintiff have damages assessed to him, he will get the costs of demurrer as of course. So if he enable the final judgment to be given by entering a nolle prosequi, he will be entitled also to the costs of the demurrer. Williams v. Vines, 9 Jur. 809; or on a discontinuance. Mayor of Macclesfield v. Gee, 18 M. & W. 470. The plaintiff might have entered a nolle prosequi as to the second count, excepting as to the costs of the demurrer, and then he would recover his costs of the demurrer, as in Williams v. Vines, just referred to. In this case he has not done so he has 1 emitted all damages sustained by him on occasion of the premises in the second count-but still I see no objection to this mode of determining his claim upon the second count; he might have declared that he would not further prosecute his suit against the defendant on this count, except as to these costs which it seems to me would be the more correct form; but when he says he remits all damages

IC. L. Cham.

to the defendant, in respect of it, he does in affect the same thing. A remittitur is entered in many cases before damages have been actually given. It appears to me then that the plaintiff had the right to dispose of the second count in the way he has done, and that the effect of it is to entitle him to the costs of the demurrer awarded to him by the judgment of the court in respect of it.

The question then is as to the quantum of costs that should have been taxed. The master has allowed full costs of suit. The defendant's summons asserts that the plaintiff should have no more costs than damages, and this Mr. Boyd argued, means that the defendant puts his case for relief upon the statute of Charles, and if this particular case be not within the provisions of that statute, the plaintiff must recover his full costs, although by some other statute the plaintiff is not in strictness entitled to any costs at all, merely because the defendant has not laid his case as within that statute.

The 324th sec. of the Common Law Procedure Act enacts that "if the plaintiff in any action of trespass or trespass in the case, recovers by the verdict of a jury less damages than eight doliars, he shall not be entitled to recover in respect of such verdict, any costs whatever, whether the verdict be given on an issue tried, or judgment has passed by default, unless the judge or presiding officer before whom such verdict is obtained, immediately afterwards certifies on the back of the record, that the action has really been brought to try a right besides the right to recover damages for the trespass or grievance complained of, or that the trespass or grievance was wilful and malicious." This sections deprives the plaintiff of all costs whatsoever, unless the judge shall certify for them.

The plaintiff before me contended that this kind of action was not within the statute at all, for the statute was applicable only in cases in which the judge could certify that the action had really been brought to try a right besides the right to recover damages, or that the trespass or grievance was wilful and malicious.

The statute of Charles was held not to be applicable to "other personal actions," though these very words were contained in the act, but was confined to cases of assault and battery and to trespass to land, because the judge had power to certify only in cases of assault and battery, and where the title to land came in question; having power therefore to certify in no other cases, it was considered that in no other case should the plaintiff be deprived of his costs. It is quite a proper construction to give to an act of this kind to hold it as confined to these cases only in which a certificate can be given.

An action for slander, imputing felony to the plaintiff, is a case under the Imperial Stat. 3 & 4 Vic. cap. 24, sec. 2, the same as our 324th section before quoted, in which the judge may certify; for an action for slander might be brought to try a right, or it might be wilful and malicious. Evans v. Rees, 9 C. B. N. S. 391.

There may be great difficulty in a judge attempting to certify that an action for criminal conversation, which may still be brought in this