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DIGEST OF ENGLISH REPORTS-JUDGMENTS.
JUDGMENTS-MICII. TERM, 1866.
tively small sum, will help to keep them up; and, indeed being old favourites, we should he sorry to miss them, though indeed as to one of them, the Jurist, it appears that it is intended to discontinue it shortly.
A new era in law reporting may be said to date from the commencement of the publication of the reports first mentioned, which may now be said to be the orthodox” reports. This being the case, and the new series being in a permanent and complete form, and the reports which will be most generally referred to by judges and counsel, and desiring as far as possible to give such of our readers as do not feel justified in going to the expense of subscribing for them, the benefit to be derived from a knowledge of what they contain, we contemplate commencing with our next issue a digest of all the cases that have since their commencement appeared, and will hereafter from time to time appear in them, affecting or bearing upon the laws of Upper Canada. It is, we think, unnecessary to publish all the cases, as they would take up too much room without any compensating advantage, but a full and judicious selection will be made, leaving out nothing but cases referring to statutes, or to law not in force in this country.
It will take some numbers to bring up the cases of last year, after which the new cases will be given with promptness and regularity, and under such heads as the number and variety of the decisions may render advisable. In addition to this it is proposed to give at the end of each year a full index of the matter contained in the digest.
We are led to think that this digest, and index in connection with it, will be of great service to all, and particularly to country practitioners; and we trust that the time and labour it will involve will be appreciated, and that the enterprise will command an increased measure of support from the profession.
Present DRAPER, C. J. ; HagarTY, J.;
Monday, December 17, 1966. Magrath v. Todd. Held, that a defect in an affidavit of the execution of a discharge of soortgage which the registrar overlooked, not being an objection patent on the face of the do:ument as registered. was no objection to the registry. (Robson v. Waddell distinguished.) Heid also, that defendant being mortgagee of the term which he since foreclosed was bound by the covenant to pay rent contained in the original lease. Postea to plaintiff.
Lyster v. Rumage.--Postea to plaintiff for an undivided two-thirds of the land sought to be recovered. Leave to appeal granted to defendant in this case and Lyster v. Kırkpatrick.
Waddell v. Corbelt.-Rule diecbarged.
Currick v. Johnston.-Judgment for defendant on demurrer to plea.
Griffith v. Hall. — Judgment for plaintiff on demurrer, with leave to amend on payment of costs.
In re Scott and the Corporation of the County of Peterborough. —Held that the Surveyors’ Act does not extend to the re-survey of a whole townsbip, but only certain concessions therein. Rule absolute to quash by-law, with costs.
The Corporation of the County of Peterborough V. the Corporation of the Township of Smith. Judgment for defendants on demurrer. Count held bad and plea beld good.
Williamson v. the Gore District Mutual Fire Insurance Co.-Rule discbarged, with costs.
Golding v. Belknap.-Judgment for plaintiff op demurrer.
Wilson v. Biggar.-Judgment for defendant on demurrer, with leave to apply to a Judge in Chambers, on affidavit, to amend.
May v. Baskerville. - Upon defendant undertaking to let plaintiff have wood on the wharf, rule to be discharged, otherwise rule absolute for new trial, costs to abide the event.
In re Lovekin v. Podger. Appeal from the County Court of the County of Victoria allowed, and rule in court below discharged.
Mitton v. Duck.---Rule discharged, with leave to appeal.
Langway v. the Corporation of the Township of Logan.-Appeal allowed.
Ryan v. Devereur. Rule absolute for new trial. Costs to abide the event.
Davis v. Bornett.-Judgment for defendant on demurrer to the first and second counts.
The Queen v. Esmonde. Judgment for the Crown.
In re Kinghorn v. the Corporation of the City of Kingston.- Rule' absolute to quash by-law, with costs.
Smith v. Armstrong.Rule pisi discharged. The Queen v. Hishon.- Conviction quashed.
The first number of the Practice Court and Chambers' Reports under the new arrangeinent is, we understand, in course of preparation by Mr. O'Brien, and will be issued as soon as a sufficient number of decisions are collected. They will in the meantime, so as to give the profession as early notice of them as possible, appear in the Law Journal, and of necessity, as a general thing, before they can be published in the new form.
Furnival v. Saunders.-Rule absolute. Kinloch v. Hall.–Rule discharged. Merrill v. Cousins.-Rule absolute.
December 22, 1666. Bell v. Mills --Stands.
The Queen y. The Canadian Welland Navigation Company. - Rule nisi refused.
Darling v. Ilitchcock. Rule nisi refused. Leave to appeal granted.
JcLennan v. The Port Burwell Harbour Com. pany --Rule nisi re used.
Ockerman v. Clapp.-Rule nisi refused.
Rastrick v. The Great Western Railway Com. piny.-Stands.
Pomroy v. Wilson. —lleld, tbat a Court of Quarter Sessions sitting in appeal on a decision from a magistrate's conviction cannot reserve a point for the decision of one or oiber of the Superior Courts : so no decision given on the merits.
Clurke v Chipman. -Held, that in order to sustain an action for money paid, it is enough to show a virtual though not an actual payment of money. Rule discharged.
Bank of Upper Canada v. Owen. -Held, that a venue laid in " the United Counties of," &c., and not County of, &c., one of the United Counties of,” &c., not sufficient. Judgment for defendant on demiurrer. Leave to amend on payment of costs.
Unitariin Congregation v. The Western .48surance Company. -Postea to plaintiffs.
Rathuell v. Rathwell.-Rule absolute to enter verdict for plaintiff for $219.
Scratch y. Jackson.-Stands till next term.
Souter et al. v. Hagaman.-Rule absolute for pew trial, on payment of costs before 1st day of next term, otherwise rule charged.
Gore Bank v. Meredith et al. — Rule absolute to enter nonguit.
In re Hyland and the Judge of the County Court of the County of Hastings.—Rule discharged.
Bickell v. Mathewson et al --Rule absolute, with costs to abide the event, including costs of the special case.
Hodgins v. Graham.-Rule absolute.
Clissold v. Machell. -Rule absolute to extend the time for delivery of appeal on payment of costs.
with liberty to defendants to modon payment of costs within four weeks.
Miller v. Miller. - Judgment for plaintiff un demurrer to second and third pleras.
Black v. Allan. — Rule absolute to enter verdict for defendant.
Glass v. O'Grady. --Rule discbiuged.
Commercial Bank v. Cotton et (nl. Judgment for plaintiffs on demurrer.
Wiseman v. Williams et al Jurigment for plaintiff on demurrer. Plaintiff's rule discharged. Defendant's rule refused.
Merner v. Klein.---Rule absolute for new trial. Costs to abide the event.
Stabler v. Linster.- Rule refuel.
In re Lennox and the Police Commissioners of the City of Toronto.-lleld, that Police Commissioners bave no power to pass by-laws or regulations imposing penalties for non-compliance with their by-laws or regulatious. Ruie absolute to quash conviction.
Furnival v. Saunders Rule absolute for a prohibition.
Kinloch v. llall. Held that a plaintiff, although deprived of all costs in respect of his verdict under sec. 321 of the C. L. P. Act, may yet bave full costs on a successful demurrer to pleas of the defendant. Rule discharged, but as the point a new one, without costs.
Cousins v. Merrill. -- Rule absolute, without costs.
December 22, 1866. In re Leys v. McPherson.-- Appeal from the decision of the Judge of the County Court of the United Counties of York and l'eel allowed, and rule nisi in the court below to be discharged.
Killbride v. Cameron.-Stands for production of exbibits.
Cosford v. Drew. - Defendants amendment upon payment of 25s. costs, and their judgment for defendants without costs.
Miller v. Wiley et al. ---Judgment for demandant.
Meyers v. Brown.—Held, that if taxes be validly paid before sale of lands for taxes the sale is void. Judgment for plaintiff on special case.
The Queen v. Hall.-Judgmeni for defendant.
Wright v. Skinner.-Rule absolute to enter a nonsuit.
McCurdy v. Swifi.—Rule absolute.
Flood v. The Great Western Railway Company. Leave to appeal granted.
Present RICHARDS, C. J.; ADAM WILSON, J.;
Bacon left a will appointing six executors, John Wilson, J.
but no property except his name and memory, December 17, 1866.
which he bequeathed to “men's charitable
speeches, to foreign nations, and the next age." Buchanan v. Harres.—Rule discharged.
Lord Clarendon had nothing to leave his Bannerman v. Dewson. -- Rule discharged.
daughter but his executor's kindness; and Lewis v. Kelly.—Rule discharged.
Lord Nelson left neither a will of real or perAnderson v. Orchard. —Rule discharged. sonal estate behind him, although he bequeathCarscallan v. The Corporation of the Township ed his adopted daughter to the beneficence of of Saltfleet.-Judgment for plaintiff on demurrer, his country.
ACQUIESCENCE BY LANDLORD.
Sir John Ramsden; but it is equally certain that no evidence could be produced to prove
that Sir Jobn was even aware that they were ACQUIESCENCE BY LANDLORD IN EX
made. It appeared that hitherto persons who PENDITURE BY TENANT.
held land on the tenant-right tenure had al
ways received leases upon application; but, in RAMSDEN v. Dyson, Dom. Proc. 14 W. R. 926.
the opinion of the House of Lords, the evidence This celebrated case, sometimes known as showed that the terms of these leases had been the Huddersfield tenant-right case, is impor- settled by agreement at the time when they tant, not only in a legal point of view, as were granted, and were not regulated by any atfording an admirable illustration of the rules
ascertained custom, as alleged on the part of lof law affecting the question in the cause, but the tenants. also from the magnitude of the interests in
Upon this state of things it was contended Folved, and the extraordinary circumstances by the present Sir John Ramsden that the perwhich gave rise to it, which may be fairly sons in question were, in equity as well as at described by saying that half a million of law, mere tenants at will." He denied that money had been laid out on land without any there was any obligation on the part of the better title than a few entries in a rent book. Ramsden family to treat them otherwise, and The ownership of the soil, upon which the conceived that he acted towards them in an greater part of the town of Fluddersfield is
honourable and considerate manner by offerbuilt
, was at issue in the case. This vast ing them leases for 99 years. The tenants on property hal been dealt with in a manner the other hand contended that the understandunich, according to the contention of the landing upon which they had taken their land and ford, was an attempt to introduce a new sys- laid out their money was that they were eutitem of conveyancing, while it amounted, in the tled on demand to Icases renewable for ever, view taken by the tenants, to the creation of and that any disturbance of their tenancies ber copyholds in the present century. The amounted to a fraudulent breach of faith facts were these–The town of Huddersfield against which they had a right to be relieved: stands almost entirely upon land the property in equity: and a bill was accordingly filed on par the Ramsden famlly. The late Sir John their part to try the point. Ramsden, in whose time the practice which It does not fall within our province to con-formed the subject of the suit, arose, lived at sider the question in any other than its legali a distance from the town, where he was repre- aspect. Thus viewed it cannot be denied that Beated by certain subordinate agents. The there were several circumstances which bore. regular course pursued, whenever any person heavily against the case of the tenants. In wished to take land for building purposes, was the first place it appeared that those who took
follows:--application was made to the local their land on the tenant-right tenure, paid gengent, the ground was staked out, and partic-erally about half the amount of rent demanded
llars thereof, with the name of the tenant, from those who had leases, a circumstance • fere entered in the estate books, which were difficult to explain upon the theory that both egularly kept like the Court Rolls of a manor. tenures were equally beneficial. Moreover 'wo courses were then open to the tenant: he they were themselves in doubt with regard to sight either obtain a lease, in which case of the precise terms of the leases, to which, on ourse no question arose ; or on the other hand their theory, they were entitled,
-a serious e might hold on at a fixed rent, relying merely difficulty in the way of granting an injunction;
the entry of his name in the estate books, while the House of Lords, as before mentioned, fithout any further contract or agreement was of opinion that the terms were settled in thatsoever. This was sometimes called ten- each case by special agreement. Bit right; and strange to say, this was the It being the opinion of all the judges, before burse which appears to have been generally whom the cause was heard, that no case of referred by the inhabitants of Huddersfield, contract was satisfactorily established, it recanny Yorkshiremen though they were. mained to be considered whether relief could Thenever it was desired to sell or mortgage be given on the ground of fraud; and it was by of these tenements, many of which were upon this point that the decision ultimately great value, it was effected by a mere entry turned. hibe estate books. Sir John himself appears The law upon this subject depends mainly o have taken little share in the management upon two cases, each of which embodies, as it
the property, but it was shown that his were, an important principle. Gregory v. ocal agents were in the habit of urging those Michell, 8 Ves. 328 decides that if a tenant, to applied to them, to rely on the tenant under an expectation created or encouraged ight, and not to take leases, assuring them by his landlord, that he shall have a certain hat they might depend implicitly on the hon- interest in land, lays out money upon it, and ur of the Ramsden family, that they would the landlord, knowing of the expenditure, lies lever be disturbed, and that they might have by and allows it to go on, this will amount to mases whenever they chose. There can be a species of fraud, against which relief will be o doubt that it was generally believed at the given in equity, either in the shape of a speciime that these assurances were authorised by | fic interest in the land, if the terms of the con
ACQUIESCENCE BY LANDLORD-RECENT LEGAL APPOINTMENTS.
tract are precise, or in that of compensation Courts, have disturbed the serenity of the for the money laid out. On the other hand, Parliament House. Pilling v. Armitage, 12 Ves. 85, decides that The English appointments, we
nia v take if a tenant lays out money in building, &c., in upon us to say, have been most satisfactory the hope of an extended term or otherwise, to the profession. Nothing could be more but without the knowledge of the landlord, he proper than that the great seal should be has no claim to relief either in law or equity. again entrusted to Lord Chelmsford. Wien, The question was whether the present case in 1858, he was made Lord Chancellor, doubts came within the one rule or the other, a point were entertained as to the manner in which which of course depended upon the evidence. one, whose fame had been achieved at the Vice-chancellor Stuart, in whose court the Common Law Bar, would acquit himself as an suit was originally brought, took the tenants' equity judge; but the result proved that view of the matter, considering that substantial | these doubts had been uncalled for. Since he justice was on their side; and decreed accord- left office in 1859, his judgments in the llouse ingly. From this decision the case was taken of Lords have still further advanced his repudirect to the House of Lords, when Lord tation as a lawyer. No man was ever more Kingsdown agreed with the court below; but, lucid in the statement of his arguments and the majority of the learned Lords present being views than Lord Chelmsford. We have had of a contrary opinion, it was declared that the many more learned and profound lawyers, but bill ought to have been dismissed. We sub. few who could set forth their opinions on any join the following passage from the judgment legal question in a more clear and intelligible of Lord Chancellor Cranworth as embodying
His ability as a nisi prius advocate substantially the view taken by the House of was universally acknowledged, and he was Lords :-—"If a stranger build knowingly upon equally distinguished when at the bar by the my land, there is no principle of equity which manner in which he conducted an argument prevents me from insisting on having back my in banc. The qualities which he has shown Jand, with all the additional value which the as an appellate judge, were only such, as those occupier has imprudently added to it. If a who knew him had anticipated; and whether tenant of mine does the same thing, he cannot he may be destined to occupy the woolsack insist on refusing to give up the estate at the for a longer or shorter period, it may be conend of his term. It was his own folly to build. fidentally expected that his judicial reputation I have already stated that there was no agree. will be proportionately enhanced. ment with the landlord, for any further estate The appointment of Sir Hugh Cairns as or interest, but if it could have been shown on Attorney-General, was, under the circumthe part of the respondent that the landlord, stances, almost a matter of course. No one believing the tenant to be ignorant of his
has ever doubted his great ability as a lawyer, rights, had purposely advised him to go on,
and his efficiency in the House of Commons the case might fall within the same principle
made him invaluable to any ministry. No less as a case of fraud. But no such case has been deserving was Mr. Bovill of the position which made out to my satisfaction."
he has attained as Solicitor-Genera llis sucThus ended this celebrated case, much to
cessful career at the bar, and his popularity the advantage of Sir John Ramsden, and
with the members of his circuit and the bar equally to the detriment of the townspeople
generally, rendered his appointment highly of Huddersfield, a memorable instance of the
satisfactory to the profession. No man ever danger of attempting to dispense with the pro
more fairly and honourably earned the imporper legal forms of conveyancing. --Solicitors'
'tant position of Solicitor-General than Mr. Journal.
Bovill; and whatever fortune may have in
store for him, we are persuaded that he will RECENT LEGAL APPOINTMENTS.
be found qualified for any office to which he
may be called. The legal consequences which flow from a With respect to the circumstances which change of ministry are always of interest to led to the vacancy on the bench, which has the profession, and those which the recent been filled up by the appointment of Sir change has produced, both in England and Fitzroy Kelly as Lord Chief Baron of the Ireland, have been of more than usual impor- Court of Exchequer, we must be allowed to tance. The highest office on the bench and cxpress a sincere wish that anything similar the highest offices at the bar, are of course may never again occur. When a judge feels necessarily involved in such a proceeding; but himself incapacitated for the proper disebarge both at Westminster and Dublin further of his duties, he ought to retire at once, and effects have resulted from the going out of one not wait for a change of ministry, or any ministry and the coming in of another, which party or political contingency. The proceedwe have recently witnessed. In Scotland the ing to which we refer was scarcely fair to the necessary changes are confined to the law- bar, and it was certainly not satisfactory to the officers of the Crown, and do not affect the public. But as regards the appointment of bench; and in the instance now referred to, Sir Fitzroy Kelly, we may venture to say, that no such collateral results as have been ex- it has been unanimously approved of by the perienced in Westminster Hall and the Four profession. His great ability, the bigh posi.
RECENT LEGAL APPOINTMENTS--RETIREMENT OF CHIEF JUSTICE ERLE.
tion which he occupied at the bar during so THE RETIREMENT OF CHIEF JUSTICE many years, and the kindness and courtesy
ERLE. which he invariably showed towards all the members of the profession with whom he was
Very seldom in the history of the legal pro
fession has there been witnessed a more imbrought into contact, have rendered his elevation to the bench as popular as any other we
pressive scene than that presented on Monday
last in the Court of Common Pleas. One of have ever known. The only cause of regret must be, that he was not appointed to a judi
the greatest magistrates who has presided in cial office at an earlier period in his career.
an English court of justice since the days of But however much we may feel this, we have
Lord Mansfield was sitting on the bench he entire confidence that he will discharge in a
had so long adorned for the last time, and
members of the bar to whom he had endeared thoroughly efficient manner the duties of his new position. Over-subtlety and over-copic and never-failing courtesy crowded every cor:
himself by long years of patient forbearance ousness were the faults of Sir Fitzroy at the bar, and these would be still more serious
ner of the court, eager to do him honour. It faults on the bench. Those, however, who
is not every day that the public and profes
sional voice alike demand that a retiring judge have had opportunities of meeting him in con
should bid a formal farewell to active life. But sultation, know how readily he could seize the main features of a case, how quickly he could
in some cases it is impossible that he should disgrasp the true bearing of facts, and how skil
appear from the busy scenes of professional fully he could thread his way through Justice Erle was himself anxious to have des.
existence without public observation. Chief any legal complication. The patience and attention, also, which he brought to the con
cended unnoticed into privacy; but, as the sideration of any matter that came before him,
Attorney-General observed in his admirable are well known to all. These qualities, we
address, it was impossible that he should be inake no doubt, will shine out conspicuously
permitted to do so. " There are occasions,”'
he said " where an enthusiastic and unanion the bench; and it will be found, we feel confident, that the method which he too much
mous feeling of veneration and regard requires followed at the bar, of making every possible the leader of the bar to the humblest junior,
expression," and this was one of them. From point, and leaving nothing unsaid that could
one sentiment animated the profession :-a be said, was only adopted by him from his great anxiety for the interests entrusted to
sentiment of profound respect for one of the him. We may be very sure that on all occa
noblest, and, at the same time, most simple sions he will give an attentive and patient administration of justice.
characters that has ever lent dignity to the hearing to the bar, and that, as a rule, he will only interrupt counsel, arguing in banc, for
The eloquent language of Sir John Rolt, his own information, or for the purpose of sav
although spoken only in the name of the bar, ing the time of the court. We are equally
will be adopted by the entire legal profession, convinced that he will in no case allow himn
and by the public. Indeed it would be imposself to be carried away by any prejudice or
sible to praise too highly the manner in which feeling in the discharge of his duty as a judge;
the retiring judge performed the duties of his that he will interpret and apply the law in a
office, nor could any words express too calm and scrupulous manner; and that when
warmly the affectionate respect which was ever he has to exercise a discretion, it will be
felt for him by all practitioners in his court. done in an impartial and liberal spirit. The In expectation of the ceremony, the Court only danger is lest from his desire to lay of Common Pleas was crowded long before the everything fairly before the jury, he should judges took their seats. About half-past be lead into to great prolixity in summing up; eleven the business of the day began by the but against this tendency we have every con- delivered of judgments in the only two cases fidence that he will endeavour to guard in which the Court had taken time for conhimself.*- Law Magazine.
sideration. The motions being few and short,
the Court adjourned after sitting for about an & Since the above was in type, the resignation of Sir J. L. hour. The Attorney-General, the SolicitorKoight Brace and the new appointments consequent there. General, and Queen's Advocate now came into upou have taken place. We may well congratulate both the public and the profession on the acceptance by Sir Hugh
court. Sir Roundell Palmer also took his Cairns. of seat on the Beach as one of the Lord's place in the front row of the bar. Every seat Justices of Appeal. No man could he better qualified for such a3 office. Whatever sacrifice Sir Hugh Cairus may
in the court had long before been filled. And have made, we trust that be will find he has received no now every foot of standing-room was also ocsmall compensation in having attained a position of great di pity and usefulners, where he will be perfectly at home,
cupied. At one o'clock all the judges of Con-
the Attorney-General delivered an address,