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circumstances, the second action was vexatious,

Digest of the Upper Canada Law Reports. and proceedings should be stayed till the costs of the first oction were paid.--Cobbett v. Warner,


GENTLEMEN,—It would be a great boon to WAIVER.–See Covenant; FREIGHT, 2: LEASE, 4. the profession if some arrangement could be WABRASTY. - See PRINCIPAL AND AGENT, 1.

entered into, whereby Robinson & Harrison's TASTE.-Sre TENANT FOR LIFE AND REMAINDER- and Harrison & O'Brien's Digests, together MAX, 2.

with all the Reports since the latter, down to WATERCOURSE.

November last, could be put into one new 1. Mere non-user of an easement to discharge Digest. foul water into a stream is not in itself an aban. donment, but is evidence of it; and permitting

The former Digest has been out of print for others to incur expense in preparing to do what,

some time, and is only to be found in the if continued for twenty years, would destroy

libraries of practitioners of some years standthe easement, is strong evidence of abandoning, and now that the Law Society supply the ment.--- Crossley & Sons v. Lightowler, Law Rep. Reports to all the members of the profession, 3 Eq. 279.

I am convinced that if such a work as I have 2. A riparian owner, having a right to pour suggested were published, there is not a pracfoul water into the stream, if he sells land on tising member of the profession but would the bank of the river, cannot claim a right take a copy. What do you think about it? (unless reserved in the conveyance) to continue

Yours, to pour foul water into the stream in front of

A BARRISTER. the land sold, though the water of the stream be not in actual use by the purchaser; because every riparian owner has a right to use the [We understand that the work su sgested water in its natural state, whenever he pleases, is in course of preparation, by Christopher free from such pollutions as, if continued twenty Robinson, Esq., Q.C., Reporter of the Queen's years, would become rights privileged by pre- Bench, assisted by Mr. F. J. Joseph, Barristerscription.- 1b.

at-Law. It will be a work of much labour, as

the design is, if possible, to compress into one GENERAL CORRESPONDENCE.

volume the two Digests already published, as Lar School examination.

well as the cases since decided ; and this can TO THE EDITORS OF THE LAW JOURNAL. only be accomplished by striking out obsolete Sirs,—Would you please inform me upon cases, and, abbreviating many of the head certain points in connection with the Law notes.---Eds. L. J.) School in Toronto. 1st. Is it in November in each year the

REVIEW. examination takes place. 2nd. I was admitted on the books of the Law

The LAW AND PRACTICE UNDER THE ACT FOR Society as a law student in May, 1866, and QUIETING TITLES TO REAL ESTATE. By am desirous of going up for a scholarship in

Robert J. Turner, Esq., Barrister-at-law, 1868–What years scholarship am I to study

Referee of Titles. Toronto: Adam, Steven

son & Co., Law Publishers, 1867. fot; is it the second or third ? as there are

New DOMINION MONTHLY MAGAZINE, Mononly four Scholarships and five years study

treal, 1867. required of a Law Student, I am in doubt about it. By answering these few questions

The above new books have been received,

and will be reviewed next month. you will oblige,

Yours, A Subscriber. [The examinations for the scholarships given

APPOINTMENTS TO OFFICE. by the Law School take place in November of each year, we believe, a few days before

Major-General CHARLES HASTINGS DOYLE, to be Michaelmas Term, and our correspondent will Lieutenant Governor of Nova Scotia.-(Gaztted October in 1868 be entitled to compete for the third

19, 1867.)

Colonel FRANCIS PYM HARDING, C.B., to be Lieuyear's scholarship, as he will then have en

tenant Governor of the Province of New Brunswick. tered the third year since his admission to the (Gazetted October 10, 1867.) Society.--Eds. L. J.]


Clerk of


7. Szt... Michaelmas Term ends.

time extended.

take effect.



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Governors in the Royal Instructions. For

instance, sect. 41 of the instructions sent to 3. SUN.. 1st Sunray in Advent.

the Governor in 1818 is to this effect: “Where2. Mon.. Last day for notice of trial for County Court. Audit of School section account.

as the establishment of proper regulations on every Municipality except Counties to return number of resident ratupayers to Receiver

matters of ecclesiastical concern is an object of 5. Thur.. Chancery re-hearing Terin begins.

very great importance, it will be your indis

pensable duty to take care that no arrange8. SUN.. 2o Sunday in Adrend. 10. Tuus. . Quarter Sessions and County Court sittings in ments in regard thereto be made, but such as

each County. 14. Sat. .. Grainmarand Common Schoolassessments pay- may give full satisfaction to our new subjects able, Collectors roll to be returned unless

in every point in which they have a right to 15. SUN.. 3ri Suwitry in Actrint.

any indulgence on that head, always remem. 16. Mon.. Recorder's Court sits 21. Sat... S. Tomas,

bering that it is a toleration of the free exercise 22. SUN.. 4th Sundle y in Adrent, 23. Mon .. Nomination of Mayors in Towns, Aldermen,

of the religion of the Church of Rome only to Reeves and Councillors, and Police Treas.

which they are entitled, but not to the powers 25. Wed., Christmas Duy. Alterations in school sections

and privileges of it as an established church, 26. Thur.. St. Stephen 27. Friday St. John Evangelish.

that being a preference which belongs only to 28. Sat. .. lanucents. 29, SUN.. 1:t Sunday after Christmas.

the Protestant Church of England.” 30. Mon.. School returns to be made. Last day on which

remaining half Grammar School Fund pay- With regard to the Bishop of that Church

End of Municipal year. Deputy
Registrar in Chancery to make returns and

it is noticeable that for a long time he was pay over fees. City of Toronto Assizes.

called “the superintendent of the Romish

Churches " (See Ord. L. C. 31 Geo. iii. c. 6). THE

The title of “Bishop" first began to be commonly used about the year 1810, as appears from one of Sir James H. Craig's dispatches

to the Colonial Minister, but not till 1813 was DECEMBER, 1867.

such title recognized by any official person in the government. In the debates we have

already referred to, Lord North (the leader of THE MARRIAGE LAWS–No. IV.

the government) said, “With regard to the In the interesting debates which preceded Bishop it is my opinion--an opinion founded the passing of the Quebec Act, it was the in law—that if a Roman Catholic Bishop is opinion of the law officers of the Crown that professedly subject to the King's supremacy the position of the Roman Catholic Church, as under the act of Queen Elizabeth, none of, determined by that act, was a position of tole- those powers can be exercised from which ration only and not of establishment. Thur. dangers are to be apprehended.” (Carendish's low, the Attorney General, thought that Debates, p. 222). It will be observed that by thereby “the Roman Catholic religion was the articles of capitulation, the British comonly tolerated, with provision for the continu- manders carefully abstain from giving any ance of that maintenance which the clergy guarantee that the Episcopal office should be had before from the whole population, but continued under English rule. And we do which by this act is restricted to such people not find in all subsequent Imperial or Colonial only as choose to become or to remain Roman legislation that there has been any institution Catholics." And he remarked that nobody is or restitution of the Roman Catholic episcopal thereunder compelled to be a Catholic. Caven- office in Canada. True, in some of the later dish's Debates, pp. 33, 34: Speaking with statutes reference is made to the Roman regard to the 5th section the Solicitor General Catholic Bishop, but this is out of mere courWedderborne says, “I can see by the article tesy, and the employment of the name of this bill no more than a toleration. The * Bishop” can never be taken to import into toleration, such as it is, is subject to the our system a sanction to all or any of the King's supremacy, as declared and established episcopal functions pertaining to that office as by the act of the first of Queen Elizabeth." legally constituted. 16. 64. This also appears to be the view Practically the right of the British Sovereign subsequently taken by the highest Imperial to nominate Bishops for the Roman Catholic authorities, and communicated to the Canadian Churches in Canada is ignored; these ecclesi


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astics receive the investiture of office from the from the Pope, we think the same consequence hands of the Pope; it is his act which makes, [i. e. that such right had devolved to Uis not the royal approval, which follows as a Majesty) would result from the extinction of matter of course. Then, having regard to the the Papal authority in a British Province. Quebec Act and the Statute of First Elizabeth, For we are of opinion, that rights of this can a bishop, deriving jurisdiction from such nature, from whichever source derived [ie. a source, dispense with any part of the sta- whether from the Pope or the French King), tute law of England introduced into Canada must in law and of necessity be held to devolse by our own constitutional act (C. S. U. C. on His Britannic Majesty as the legal successor c. 9)?

to all rights of supremacy as well as of Bishops in England have the right to dis- Sovereignty, when the Papal authority, pense with some parts of the statute law (e.g. together with the Episcopal office, became the proclamation of marriage banns), because extinct at the conquest by the capitulation and their dispensing power is conferred upon and treaty, and the statute, 1 Eliz. c. 1, sec. 16, as confirmed to them by statute likewise: see specially recognized in the Act for the govern. 25 Hen. VIII. c. 21, by which all bishops are

ment of Canada (14 Geo. III. c. 83).” allowed to dispense as they were wont to do.

It remains further to be observed that the But what, according to the opinion of consti- expression Ecclesiastical rights or duer," tutional lawyers who have examined this perpetuated in our constitutional act, C. S. U. matter, is the legal status of the Roman

C. c. 9, s. 6, from the 5th sec. of the Quebec Catholic Bishop in Canada? Jonathan Sewell, Act, applies simply to parochial dues and Attorney General, and afterwards Chief Jus- tithes, and cannot be construed to embrace tice, of Lower Canada, about the year 1810,

any right or privilege of dispensation. In in a state paper uses the following language :

fact a quasi-legislative interpretation to this “Since the titular Roman Catholic Bishop of

effect has been given to the words by the note Quebec, according to the original creation of appended to the 35th section of I. S. 31 Geo. the See of Quebec, holds of and is dependent III. c. 31, as it appears in the Con. Stat. Can. upon the See of Rome, and at this moment, as p. xvii. This is also abundantly evident from heretofore, derives his entire authority from the tenor of the debates upon the passing of the Pope, without any commission or power

the Quebec Act, as reported in Hansard and whatever from His Majesty, it is most clear by Cavendish. And the same view is expressthat the Statute of Eliz., which is formally but | ly maintained by Lafontaine, C. J., in Wilcox unnecessarily recognized by the Stat. 14 Geo. v. Wilcox, 2 L. C. Jur. pp. 11, 21, &c., and by III. c. 83, to be in force in Canada, has anni- Mondelet, J., in Stuart v. Bowman, 2 L. C. hilated not only his power but his office, the R. 405. 16th section having especially prohibited all By the Capitulation, the Treaty, the Quebec exercise of the Pope's authority, and of every Act, and our own Constitutional Act, there authority derived from him, not only in Eng- was and is the clear right to Roman Catholics land, but in all the dominions which the Crown in Ontario to contract marriage, as one of their then possessed or might thereafter acquire." sacraments, according to one usages of their And he strengthens his opinion by a para- church, but subject to the Queen's supremacy. graph from the report of the Advocate General In other words, their clergy had and have the (Sir James Marriot) in 1773, upon the affairs power to celebrate marriage after due proclaof Canada, in which that eminent jurist mation of banns, in the same manner as we observes that there is in Canada “no Bishop have seen that ministers of the then dissentby law." The law officers of the Crown, con- ing churches had that privilege by virtue of sisting of Charles Robinson, Vicary Gibbs and special legislation interposed on their beball, Thomas Plumer, and being respectively His during the time that the Church of England Majesty's Advocate, Attorney and Solicitor was the State Church. But the onus is on the General, in reporting in 1811 upon the ques. Roman Catholic Bishops to shew that they tion as to the right of presentation to Roman have any larger authority or more extensive Catholic livings in Lower Canada, make use of rights, or that they occupy any more privileged the following remarkable language : “If, how position, than the officers of the other churches ever, this right be supposed to have originated | in this Province. If the marriage law of Eng.



land became our marriage law by the first legislative act of Upper Canada, was not the The following students received certificates Roman Catholic Church subject thereto in com- for admission to practice as Attorneys and mon with the so-called dissenting churches, Solicitors:-Duncan Morrison, Toronto; Thos. save where relief was given by the earlier S. Kennedy, Toronto ; Henry Becher, London ; legislation we have referred to ? If under the W. E. Ruttan, Cobourg; A. H. Meyers, TrenConsolidated Statutes, and now that all con. ton ; S. B. Burdett, Belleville ; J. E. Rose, nection between Church and State is abolished, Toronto; W. Johnson, Hamilton; R. L. Ashthe English marriage law, modified in some baugh, Hamilton ; M. O. McGregor, Elora ; respects as we have seen, be our marriage law, Pennock, Ottawa; J. S. Wilson, Toronto; is not the Roman Catholic Church on the H.P. O'Connor, Goderich; T. Woodyet, Brantsame footing as all the other churches, and ford ; R. S. Birch, Toronto. bound to invoke the aid of the Governor's

The fact that the oral examination was license, where any dispensation of the statute

dispensed with as to the first eight on this law is contemplated ?

list, would seem to shew that gentlemen going Much more might be said as to these many

up for examination of late have given more questions we have dealt with, but it is time to

attention to their work, than formerly. draw to a close. In view of what has been written it would

It may not, whilst speaking on this subject, seem that there are two matters in the marriage

be thought invidious, to particularise the ex

aminations of Mr. Morrison and Mr. Kennedy, laws to which legislative attention may well

the two first on the list, which were both exbe given : I. To provide that any departure from the

ceedingly good; and we are glad to see that ceremonies prescribed by law in the celebra

Mr. Kennedy continues to be so successful in tion of marriage should be irregularities merely,

his examinations. He was, as we noticed with not operating to the annulment of the marriage

reference to the scholarship examinattons two. tie, but only exposing the officiating clergy

years ago, the first, and is yet, we believe, the man or officer to certain penalties.

only student who, coming from the University II. To define the position of the Roman

class, and, therefore, so as to speak, two Catholic Church in this respect, and to place years behind the five years men, has obtained the adherents of that church in express terms

the only scholarships for which he was eligible, upon an equality with the rest of the popu

namely, those for the third and fourth years. lation. We shall on a future occasion refer to a

This excellent system of fostering indusvery interesting decision in Lower Canada, as

trious habits in students, and helping to bring to the validity of a marriage between a Chris

rising young men to the surface, seems to work tian and an Indian woman, a pagan, according

admirably. The result of the examinations. to the rites or custom of the tribe to which she

for this year, is as follows:belonged.

Third Year.
Mr. Charles Moss received ......



227 1867.

Maximum number of marks, 310. Number Sixteen gentlemen presented themselves for

of marks necessary to entitle to a scholarship, examination for call this Term, out of whom

213. Scholarship given to Mr. Moss. ten only were declared duly qualified for this

Second Year. honorable distinction.

Mr. G. R. Clarke, received 278 Marks. The following are their names :-J. Magee,

W. J. Green,

277 London; B. Cronyn, London; J. W. Fletcher,

248 Toronto ; A. H. Meyers, Trenton ; Henry

“ McIntosh,

247 Becher, London ; W. H. Cutten, Guelph; J.

" McDonell, E. Rose, Toronto; W Johnson, Hamilton. Maximum number of marks, 320. Number

Mr. Magee's papers were so good that he necessary to entitle to a scholarship. 213. The was not required to undergo any oral examin- scholarship was given to Mr. Clarke, who de. ation.

feated Mr. Green by one mark.


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Law Society—THE TRIBUNALS, &c., of France.

First Year.

tant points of difference between our own and Mr. Crerar, received...

253 Marks. the jurisprudence of the French, and the comKeefer,

parison which each bears to that of England, 250

may be briefly noted. Maximum number of marks, 320. Number The procedure in France, as in most of the necessary to entitle to a scholarship, 213. Continental countries, is according to the prin. The scholarship was given to Mr. Crerar, who

ciples and practice of the Roman civil law. In

the trial of civil actions of every grade no jury defeated Mr. Keefer by three marks.

is allowed, the judge deciding everything acOne other candidate competed in the third cording to his own sense of justice and proyear, and two others in the first year; but priety. And, as would naturally be expected, they did not gain the minimum of marks,

where everything depends upon the arbitrary

discretion of the judge, testimony of almost No scholarship was given in the fourth

every grade of conclusiveness, or the contrary, year; none of the three candidates who pre

is received, and it often happens that the case sented themselves for examination having is finally made to turn upon very slight cirgained the necessary number of marks. cumstances, and is really

lecided upon evi It will be secen from the above that

dence, in itself, of no great significance, and

which, upon the more exact and refined rules Mr. Moss has only to obtain the scholarship of the English common law, would scarcely be for the fourth year, to have the satisfaction considered competent. But this is a result of knowing that he has been successful not very different from that which often occurs in obtaining every scholarship for which

in jury trials at common law, where causes he has tried. If we belonged to a betting the bias of the jury, religious or political, or

are made to turn, quite as often, perhaps, upon instead of a legal fraternity, we should back the last words of able and eloquent counsel, him to take the scholarship for the fourth

or of the judge in summing up, as upon the year, as he has the first, second and third, testimony given in court, and in that way,

perhaps, more complete justice is effected. though it is said that a University man intends

The French jury, in the criminal courts, to make him win it well a year hence.

consists of twelve, but unanimity is not reMr. Green for the second year again runs Mr. quired, the voice of a majority being sufficient Clarke very close, being only one mark behind

in ordinary cases, there being some few ex

ceptional instances, where the concurrence of him; last year he was three marks behind.

two-thirds is required to give a verdict. We Let him not despair, and next year another sat for a short time in the same court-room relative gain of only two change their places. where the attempted or would-be assassin of

the Czar, Berezowski, had been tried a few

hours before. The same jury and the same SELECTIONS.

judges still continued the session; the judges

in their scarlet robes, and the minister of THE TRIBUNALS AND THE ADMINIS

justice, in the person of the prosecuting attorTRATION OF JUSTICE IN THE EMPIRE

ney clad in the same garb, occupying a seat OF FRANCE.

half-way between the bar and the bench. The

presiding judge called upon the accused, sitOne can scarcely compare the courts in ting between two gens d'arme, to plead, who different countries without the hazard of mak- stood up and stated briefly their plea, and inn unjust or unfounded inferences. And whether they had or desired counsel. The still there is no one thing upon which the judge then administered a long oath to the real character of free governments, more en jury, which seemed to embrace a kind of tirely depends. But there is very much in charge as to their duty, and, at the close, the inere organization of the courts or judicial called upon each member of the panel

, by tribuals of the French Empire, to indicate the name, who gave his assent by raising the right energy and decision with which the govern- hand. The representative of the minister of ment'is administered. It is a perfect system justice then proceeded with the trial, first of superiority and subordination, from the examining the accused, giving him the full humblest police magistrate to the High Court benefit of his own story, if that can fairly be of Cassation.

regarded as any benefit, which may we think, In a few days' visit to the Palace of Justice, be considered as somewhat questionable. although accompanied by a very intelligent There is in each arrondissement throughout advocate, who was entirely competent and the empire an Imperial tribunal to hear appeals very ready to explain all which came under from all the courts of first instance in that review, one could scarcely expect to acquire arrondissement Paris, with some few of the very accurate information in regard to the adjoining districts, constitutes one arrondisse detail of so complex a system as that of the ment, and has its imperial court for hearing judicial tribunals of a great empire, like that appeals from all the courts of first instance of the French. But some of the more impor- ! within that district or arondissement. We

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