there are very few convicts satisfied with their verdict.

The worst among them will acknowledge that they have committed crimes indeed, but not the one for which they are sentenced, or they will insist upon the falsehood of a great deal of the testimony on which they are convicted, or the illegality of the verdict.

The objection to the non-unanimity principle is not founded on any physcologic ground. How much stronger is the fact that all of us have to abide by the decision of the majority in the most delicate cases, when Supreme Courts decide constitutional questions, and we do not only know that there has been no unanimity in the court, but when we actually receive the opinions of the minority, and their whole arguments, which always seem the better ones to many, sometimes to a majority of the people! Ought we to abolish, then, the publication of the fact that a majority of the judges only and not the totality of them agreed with the decision? By no means. Daniel Webster said in my presence that the study of the Protests in the House of Lords (having been published in a separate volume) was to him the most instructive reading on constitutional law and history. May we not say something similar concerning many opinions of the minority of our supreme benches?

By the adoption of the rule which I have proposed, the great principle that no man's life, liberty, or property shall be jeoparded twice by trials in the courts of justice, would become a reality. At least, the contrary would become a rare exception. Why do all our constitutions lay down the principle that no one shall be tried twice for the same offence? Because it is one of the means by which despotic governments harass a citizen under disfavor, to try him over and over again; and because civil liberty demands that a man shall not be put twice to the vexation, expense, and anxiety for the same imputed offence. Now, the law says, if the jury finds no verdict it is no trial, and the indicted person may be tried over again. In reality, however, it is tantamount to repeated trial, when a person undergoes the trial, less only the verdict, and when he remains unprotected against most of the evils and dangers against which the Bill of Rights or Constitution intended to secure him This point, namely, the making of the noble principle in our constitution a reality and positive actuality, seems to me a most important motive why we should adopt the measure which I respectfully, but very urgently, recommend to the Convention. So long as we retain the unanimity princip'e, so long shall we necessarily have what virtually are repeated trials for the same offence.

In legislation, in politics, in all organizations, the unanimity principle savors of barbarism, or indicates at least a lack of development. The United States of the Netherlands could pass no law of importance, except by the unanimous consent of the States General. A

[C. L. Cham.

single voice in the ancient Polish Diet could veto a measure. Does not perhaps something of this sort apply to our jury unanimity?

Whether it be so or not, I for one am convinced that we ought to adopt the other rule in order to give to our verdicts the character of perfect truthfulness, and to prevent the frequent failures of finding a verdict at all.American Law Register.

UPPER CANADA REPORTS.

COMMON LAW CHAMBERS.

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

MCGUFFIN V. CLINE.

Setting aside order for arrest made by County Court JudgeGrounds for interference-Waiver-Order for too great an

amount.

There is a broad distinction, on an application to set aside an order for an arrest, between an order based on affidaTM vits deficient in statutable requirements and those containing statements from which different conclusions might fairly be drawn by different judges.

In a case coming under the latter head, a Judge in Chambers declined to set aside an order for arrest by a County Court Judge of competent authority, preferring to leave it to the full Court.

But as the order was granted for a sum greater than that warranted by the allegation in the affidavit, the amount for which defendant was held to bail was directed to be reduced to the correct sum, without setting aside the order.

The defendant does not, by putting in special bail, waive objections not of a technical nature.

[Chambers, September 13, 1867.]

On the 25th June, 1867, the defendant was arrested on a capias ad respondendum for $700. The writ was obtained on an order of the County Judge of Halton, made the same day, founded on an affidavit of plaintiff, setting forth a suit and a reference to arbitration, and an award by the arbitrator directing that defendant should pay plaintiff $500, and that defendant was justly indebted to plaintiff in that sum, and also in $80, or thereabouts, for costs of reference and award, also directed to be paid to him by the award.

The affidavit proceeded to state the grounds on which plaintiff sought to shew that the defenddant was about to leave the country, &c.

Defendant was arrested on the same day, on the writ for $700.

On 2nd July, a summons was obtained in Chambers, with stay of proceedings, to set aside the judge's order and the arrest, &c., on the grounds that the affidavit was insufficient; that the reasous assigned for plaintiff's belief were insufficient, untrue, and unfounded, &c.; that no copy of the award was served, or demand made; that the order was for $700, though only $580'sworn to, and because defendant was not about to quit Canada, &c.; or why the amount for which defendant is held to bail should not be reduced to $500.

On 4th July, the defendant's attorney in Milton, in ignorance of the issuing of the summons and stay of proceedings, put in special bail for defendant.

Many affidavits were filed on the hearing, on either side.

C. L. Cham.]

Ferguson shewed cause. J. B. Read contra.

HAGARTY, J.-I at once say that I should not have ordered defendant's arrest on such an affidavit as seems to have satisfied the County Judge. But I have several times had occasion to express my difficulty in assuming the right to review the exercise of the judge's discretion in a matter clearly within his jurisdiction.

There are certain facts stated to support plaintiff's assertion that defendant is about to abscond. They do not satisfy my mind; but they scem to have satisfied his mind. The legislature gave him full power to form an opinion, and to act thereon. I expressed this doubt in Allman et ux. v. Kensel, 3 Pr. R 110. The present Chief Justice Draper, says in Terry v. Comstock, 6 U. C. L. J. 235, that if pressed to overrule such a decision, he would refer the matter to the full court. In the same volume similar doubts are expressed by Richards, C J., in Swift v. Jones, 1b. 63, and again in Palmer v. Rogers, Ib. 183, and Runciman v. Armstrong, 2 U. C. L. J., N. S., 165.

In Howland v. Roe, within the last twelve or eighteen months, I had occasion to consider and review some of the cases on this subject, but the written judgment which I delivered was mislaid in Chambers. I there arrived at the conclusion that when a judge's order had been obtained on affidavits clearly omitting certain material statutable requirements (under the absconding debtors' act), another judge could properly set it aside.

The order made was moved against in term, but without success, 25 U. C. Q B. 467. In Demill v. Easterbrook, 10 U. C. L. J. 246, Mr. Justice A. Wilson seemed to consider that one judge might review the conclusions arrived at by a brother judge, but he did not set aside the order.

I draw a broad distinction between the case of an order based on affidavits clearly deficient in certain statutable requirements, and those which state facts from which differently constituted minds may in good faith draw different conclusions I think I should wait the positive judgment of a Court in Banc before taking on myself to set aside a judge's order merely because the statements on which it was granted failed to bring my mind to the same conclusion as that of my fellow judge.

But the order, before me seems open to the objection that it is granted for a sum far greater than is warranted by the allegation. The affidavits only pretend to charge a debt of $580, and the $80 being for costs, ought not to have formed part of the sum for which defendant was held to bail I cannot understand on what idea the order issued, or the writ was marked for $700. It is certainly wrong for the excess above $500.

The earlier cases would seem to warrant a literal setting aside of the arrest on such an objection But in Cunliff: v. Maltass, 7 C B. 701, the Court points out the difference under the new law, that "the arrest now takes place, not by force of the affidavit stating the amount of the debt, but for such amount as the judge in his discretion may think fit; such discretion, of course, to be exercised, not arbitrarily, but according to the practice of the Court." There the judge ordered that a capias should issue for

[C. L. Cham.

£1050, the sum alleged in the affidavit to be due for principal on certain bills of exchange set out, and defendant was arrested therefor. It was found that as to one of the bills, a good cause of action was not stated in the affidavit. Defendant applied to the same judge (Patteson) to be discharged from custody, not to set aside the order. The judge refused so to do, but made an order reducing the amount for which defendant should be held to bail to £550, thinking that amount to be clearly due.

The Court, after full argument, refused to set aside either order, Wilde, C. J. saying, "that the judge had authority to make the order to the extent of £550 is conceded; the real objection is that he erroneously exercised his discretion by ordering the capias to issue for £1050. We, therefore, cannot set aside the order altogether. It was admitted on argument that the authorities show that the circumstance of a defendant being arrested for too large an amount affords no ground for his discharge, if the affidavit warrants the arrest to a certain extent." All the previous cases are reviewed in this judg

ment.

It is also sought to be shewn by affidavits of the defendant and others, that as a matter of fact he did not intend to leave the country. This is met by affidavits on the plaintiff's part, which shew that others besides the plaintiff believe that such was defendant's real intention.

I do not feel warranted in acting on this part of the application, on the conflicting evidence.

It is objected by the plaintiff that defendant has waived objections to the arrest by putting in special bail. It seems from the law laid down in 1 Arch. 796 & 2 Lush Pr. 706, that this would only cure a technical objection, and not substantial defects. It is pointed out that the powers given by the statute to a court or judge to interfere is at any time after the arrest." This is noticed in Bowers et al. v Flower, 3 Pr. R. 68, and by Coleridge, J., in Walker v. Lumb, 9 Dowl. 131. The objection here is certainly more than technical.*

CAMERON ET AL. V. MURPHY.
Ejectment-Letting in landlord to defend.

One Casselman, claiming under a Sheriff's sale, recovered possession by ejectment of the land in dispute against defendant, who had been his tenant at will since the purchase at sheriff's sale; and, on 20th July, 1866, turned him out of possession, but the premises were left vacant. On the 29th March, 1866, plaintiff commenced an ejectment against defendant, and on 8th June, 1867, was put in possession under a writ in this suit. Casselman then applied to set aside this judgment, and be let in to defend as landlord, but

Held, that he must be left to his ordinary remedy by ejectment.

[Chambers, September 13, 1867.]

This was an action of ejectment commenced on 29th March, 1866. Interlocutory judgment for default of appearance was signed 7th March last. A writ of possession was issued and plaintiffs were put in possession on 8th June last.

On 1 th Aug., 1867, one Cas-elman applied to set aside this judgment, and to be allowed to defend the action as landlord of defendant Murphy. He swore that Murphy gave him no notice of this

The case was subsequently compromised by the parties.-REP.

C. L. Cham]

action and that he did not know of it till the second week of July last; that he purchased Murphy's interest in the land some years ago, at sheriff's sale, and that Murphy then became his tenant at will, and was in possession as such about five years. He then brought ejectment, and on 20th July, 1866, was put in possession by the sheriff, and Murphy removed, but as he had no use for the land, he left the possession vacant. Nearly a year after, the plaintiffs were put in possession in the suit they had brought against Murphy, commenced a few days after Casselman's suit.

It appeared that when Casselman sued out process, on 23rd March, 1866, he did not claim title as Murphy's landlord, but, according to the the notice on the writ, as purchaser under the sheriff's sale on the judgment against Murphy.

It appeared from the affidavits that when plaintiffs' writ was served on Murphy, he had previously been served with ejectment process at Casselman's suit whereby title was claimed not on any relation of landlord and tenant, but on a wholly different ground. Casselman then recovered judgment, and ejected Murphy in July, 1866, and left the land vacant, and so it remained for eleven months. During all that time, Casselman was neither personally or by tenant in actual possession, and if the plaintiff or a stranger had entered on the vacant land, he would have been driven to his ejectment. Murphy had apparently not been heard of since his removal from the land in 1866.

O'Brien, shewed cause. Beaty, contra.

HAGARTY, J.-I am of opinion, that on the facts thus briefly stated, it is impossible for me to allow Casselman to interfere now and defend the suit. To do so, it would be necessary to remove plaintiffs from the possession obtained by them in due course of law. The whole difficulty has apparently arisen from Casselman's own neglect in leaving the premises vacant for nearly a year, after he had ejected Murphy.

Were it necessary to enter further into the peculiar facts of the case, I might mention that notice of the pendency of this action against Murphy is positively sworn to, as given more than a year before judgment was signed, notwithstanding his denial thereof in his affidavit.

The only reason for allowing a landlord to appear and defend, is to prevent a recovery of a judgment and possession in an action orginally brought against his tenant. When the landlord is at the same moment seeking to eject the man he now alleges was his tenant, turns him out and takes possession himself, I hardly see why the privilege should be longer claimed. Had he chosen to continue in possession, could plaintiffs have removed him on a writ founded on a judgment against Murphy ? By abandoning the premises for a year, he left it open to all the world to enter and take possession, and in such case I think as against these plaintiffs, equally as against a stranger, he must be left to his ordinary remedy by ejectment.

I think the summons must be discharged with costs.

Summons discharged with costs.

[C. L. Cham.

KERR V. WALDIE ET AL.

Ejectment against landlord and tenant-Application to strike out name of latter.

In an action against a landlord and his tenant, the latter being in actual possession, held, though with much doubt, that the name of the tenant might be struck out of the proceedings.

Doubts as to the propriety of the practice laid down in D'Arcy v. White, 26 U. C. Q. B. 570.

[Chambers, Sept. 21, 1867.}

This was a summons calling on the plaintiff to shew cause why the names of all the defendants, other than the defendant Waldie, should not be struck out.

It appeared from the papers filed that the defendant Waldie was landlady of the premises in dispute, and that the other defendants were her tenants. A consent was filed, signed by the latter to the effect that they consented to their names being struck out of the proceedings, and to the defendant Waldie defending the possession of the property in her own right as landlady, and asserting that they had no interest in the premises, except as tenants. The tenants were, and the landlady was not in actual possession of the premises.

James Paterson shewed cause. There is no authority for this application-sections 9 and 14 of the Ejectment Act, Cou. Stats. U. C. cap. 27, do not apply to such a case as this. The usual application, and all that the statute contemplates, is to allow a landlord to come in and defend with a tenant, where the action is brought against the tenant alone. But the plaintiff must proceed against the person in possession. If he do not, how is he to obtain possession, even though he recover against the landlord. The only occasion in which a defendants name can be struck out, is where he is not in possession of the property and has no interest in it; and here the tenants are in actual possession and have a direct interest in the property.

J A. Boyd, contra. As to the right of a landlord to come in to defend, see Peebles v. Lottridge, 19 U. C. Q B. 628; and Jones v. Seaton, 26 U. C. Q. B. 166.

It is just and proper that the landlord alone should defend, for otherwise, in case of a verdict for plaintiff, even if the tenants allowed judgment to go by default, they would be liable for costs, D'Arcy v White, 24 U. C. Q. B. 570.

ADAM WILSON, J.-I am not satisfied that it is a proper practice to strike out the name of the tenant of land, held by the tenant in actual occupation, merely because the landlord or some one else who is interested in the defence has been permitted to appear and defend the action.

The writ is to be directed to the person in possession by name, and to all persons entitled to defend the possession of the property claimed, and I do not see why the name of the person in possession should be struck out, so long as he is in possession.

Under the former practice, when the tenant did not appear, and the landlord was permitted to defend the action, a judgment was signed by the plaintiff against the casual ejector, to enable the plaintiff to recover the possession, in case he succeeded against the landlord; for without such a judgment, the plaintiff could not upon an execution against the landlord who was not in

C. L. Cham.]

possession, turn out the person who was in possession. This rule prevailed before the statute of Geo. II. See Fairclaim v. Shamtitle, 3 Bur. 1290

I see still some difficulty in enforcing the habere facias against some one who is not upon the land, or it may be even in the country, by turning off some body else, not appearing to have the least connection with the defendant. And I see no objection in turning off those actual occupants of the land by name, who were such occupants when the suit was commenced, and who were rightly made defendants.

Mr. Boyd has referred to two cases which sanction this practice, Jones v. Seaton, 26 U. C. Q. B. 166; and Peebles v. Lottridge, 19 U C. Q. B. 628. And the case of D'Arcy v. White, 24 U. C. Q. B. 570, deciding that tenants whose names remain as defendants on the record, although judgment by default has been given against them for not appearing, are liable for the whole costs of the action occasioned by the defence of the person who has been admitted to defend, shows there must either be some serious deficiency in the law or some defect in the practice; and therefore, though with great distrust as to my power in such a case as the present, I will make the order as applied for.

The 14th section of the Ejectment act is just the converse of this case, and is, I think, opposed to the practice which has been referred to, a practice assuming to be sanctioned by the old law, when there was a special means of carrying it effectually through, but not at all provided for by the present mode of proceeding

Order to strike out names of tenants upon payment of costs of the application. Other costs against tenants to be costs in the cause against the landlady.

REID ET AL. V. DRAKE.

Charging defendant in execution-Vacation not part of pre ceding Term for that purpose-County Judge declining to act-Right of defendant to a discharge on habeas corpus. The vacation succeeding a Term is not to be considered for the purpose of charging a defendant in execution as a part of the preceding Term.

The same rule governs in this respect in County Courts as in the Superior Courts.

A Deputy Judge of a County Court declining, as he was the partner of the plaintiff's attorney, to entertain an application by defendant for a supersedeas on the ground that he had not been "charged in execution within the Term next after judgment" against him, the defendant was discharged from custody under a writ of habeas corpus.

[Chambers, September 28, 1867.]

Upon the application of the defendant, and upon reading his petition and affidavit, a copy of a writ of capias ad respondendum issued from the County Court of Grey, upon which defendant was arrested, and a certificate of the sheriff of the county of Bruce, by whom he was arrested, as to the cause of his detention, the defendant obtained a writ of habeas corpus.

It appeared from the petition of the defendant

1. That the defendant was, on the 28th Februry last, arrested under and by virtue of a writ of capias issued from the County Court of the county of Grey, at the suit of Calvin Pomeroy Reid and Charles Brown, and is still a prisoner in the close custody of the said sheriff under the said writ.

[C. L. Cham.

2. That the said Calvin Pomeroy Reid and Charles Brown, after said arrest, declared in their said action against the petitioner, and issue was joined therein on the 29th March last, and the same was tried at the County Court sittings, at the town of Owen Sound, about the 12th June last, and a verdict rendered for the said plaintiffs for the sum of one hundred and six dollars, or thereabouts.

3. That the petitioner should accordingly (as he is advised and believes) have been charged in execution in the said action by the plaintiffs during the July term thereafter, but they have failed so to do, and have not yet charged the petitioner in execution.

4. That the petitioner, about the beginning of the present month of August, in due form caused application to be made for a supersedeas in the said action to Samuel J. Lane, Esq., the acting Judge of the said county of Grey, in the absence of Henry McPherson, Esq., the judge of the said Court, but the said acting judge declined to receive the said application.

5. That the said acting judge is the partner of John J. Stephens, Esq., who is the plaintiffs' attorney, and, owing to his being so interested in the said suit (as the petitioner is informed), he declined to entertain the said application.

6. That the said judge, Henry McPherson, Esq., has for some time past been absent on a trip to Europe, and will not, as the petitioner is informed, return till some time in the month of December next.

7. That the petitioner was arrested in the said action on the alleged ground that he was about to quit Canada with intent to defraud the plaintiffs, which allegation was utterly unjust and unfounded, and the petitioner is not detained in custody for any other cause or matter what

soever.

8. That since the petitioner's arrest he has duly executed a deed of assignment, for the benefit of his creditors, to the official assignee for the said county of Bruce, under and in accordance with the Insolvent Act of 1864.

9. That the petitioner is not worth the sum of twenty dollars over and above his necessary wearing apparel, and, under the provisions of the Indigent Debtors' Act, would be entitled to procure his discharge, but your petitioner verily believes that any application for his discharge in the said action would (for the reasons above mentioned) be declined by the said acting judge, and the petitioner, is thus unable to procure relief from the said Court during the absence of the said Judge, Henry McPherson, Esq.

The petition then prayed that a writ of habeas corpus might issue, and that the defendant might be discharged from custody.

The first term after the sittings commenced on the first day of July last and ended on the sixth of that month, and the defendant has not yet been charged in execution.

This was not denied by the plaintiffs. The defendant waived his right to be present upon the return of the writ of habeas corpus. Upon the writ and return being filed,

Morphy, for the plaintiffs, showed cause, and contended that the whole of the vacation succeeding the July term was to be considered a part of that term, and that the plaintiffs had,

therefore, until the 5th day of October, inclusive, the last day of that vacation, within which to charge the defendant in execution, citing Curry v. Turner, 9 U. C. L. J. 211.

for defendant, cited Brash v. Latta, 5 U. C. L. J. 226; Torrance v. Halden, 10 U. C. L. J. 832; and Har. t. L. P. A. 673.

ADAM WILSON, J.-The question is whether the vacation is for the purpose of charging the defendant in execution to be considered a part of the preceding term? The terms are those seasons of the year which are set apart for the dispatch of business in the superior courts of common law? 3 Bl. Com. 275; Tidd's Prac. 9 Ed. 105; and these terms have certain days of commencement and of termination. The other seasons, not so set apart for the dispatch of business in the superior courts of law, cannot be within the terms.

The County Courts have, by ch. 15, sec. 13, of the Consolidated Statutes for U. C., "four terms in each year, to commence respectively on the first Monday in January, April, July and October, and end on the Saturday of the same week." This gives the extent and duration of the termall other periods of the year must be out of term. The 18th section of the same act declares that in any case not expressly provided for by law, the practice and proceedings shall be regulated by, and shall conform to, the practice of the superior courts of common law.

There is no express provision in the County Courts for charging prisoners in execution, and therefore the practice and proceedings must be regulated by that of the Queen's Bench and Common Pleas; and the rule (Rule 99, T. T. 1856) which prevails in these courts, is that "The plaintiff shall cause the defendant to be charged in execution within the term next after trial or judgment.'

That the vacation is not considered as part of the preceding term appears by the following

cases:

In the case of a non-pros. for not declaring, which may be signed after the end of the term next after the appearance is entered, this term ends with the actual term time, and does not include the following vacation, 2 Wm. Bl. 1242; Brandon v. Henry, 3 B. & Al. 514; Foster v. Pryme, 8 M. & W. 664. In the case of a terms notice of the plaintiff's intention to proceed with the cause, the vacation forms no part of the term, Milbourne v. Nixon, 2 T. R. 40.

The former rule was, that the defendant should be charged in execution within two terms inclusive after trial or judgment, of which the term in or after which the trial was had should be reckoned as one. If a defendant surrendered in vacation after judgment, the vacation was reckoned as part of the previous term, and the defendant was supersedeable after the expiration of the following term, excluding the subsequent vacation. So that after trial or judgment the plaintiff had only to the end of the following term, within which to charge the defendant, Smith v. Jefferys, 6 T. R. 776; Borer v. Baker, 2 Dowl. 608; Baxter v. Bailey, 3 M. &. W. 415; Thorn v. Leslie, 8 A. & E. 195.

The rule by which the vacation was to be considered part of the previous term, was held to be done away with by the pleading rules which had

[Insol. Case.

It

the effect of an act of Parliament, and which declared that judgments should have no relation backward, and the plaintiff was held to be entitled to two full terms after the judgment had been signed, Colbron v. Hall, 5 Dowl 534. was no doubt to meet the change unintentionally effected by the pleading rules, that the present rule was framed, which virtually restores the former one, by declaring that the defendant shall be charged in execution within the term next after trial or judgment.

I have no doubt then that the term next after the trial or judgment expires with the term time or the period in and for which the court sits, and that it does not include with it the following vacation. As the plaintiff has not conformed to this rule, the defendant is entitled to his supersedeas.

The other point is, whether the defendant is pursuing the proper course, by suing out a habeas corpus under the circumstances stated in his petition.

The deputy judge should, in my opinion, have granted the application. It is a serious matter to detain a person in custody illegally, I had some doubt whether the defendant had presented a sufficient case to justify my interference with the proceedings of the County Court. I am not altogether satisfied that such a case has been made, but on an occasion like the present, I feel I should give the advantage of the doubt to the prisoner,

I shall therefore order that he be discharged from custody in this cause.

INSOLVENCY CASE.

(Reported by HUGH MCMAHON, Esq., Barrister at-Law.)

Before STEPHEN J. JONES, Esq., Judge County Court, Brant.

IN THE MATTER OF WM BEARE, AN INSOLVENT. Giving up part of stock to a creditor-Evidence of frawlulent preference-Discharge refused-Conditional discharge -Effect of insolvent not keeping proper books of account. [Brantford, 9th September, 1867.]

The insolvent made a voluntary assignment to the official assignee of the county of Brant; and on his examination before His Honor the Judge of the County Court, on his application for discharge, it appeared that up to September, 1864, he had carried on business as a general merchant, at Widder station, in the county of Lambton, at which time he removed to Walsingham, in the county of Norfolk. He was then solvent. owned a house and lot at Widder. The house was insured. The property was mortgaged to Kerr, McKenzie & Co., of London. At that time be was owing Kerr, McKenzie & Co. over $3,000. The buildings were, subsequent to Beare's removal from Widder, destroyed by fire, and Kerr, McKenzie & Co. got $900 for insurance, and sold the lot under the mortgage for $400 more.

He

In January, 1865, the insolvent being behind in his payments to Kerr, McKenzie & Co., they sent their book-keeper to the insolvent's place of business at Walsingham, and advised him to confine himself to groceries, taking away all his dry goods, which had been purchased from Kerr, McKenzie & Co. No account was kept by the