roil, is final. (Morrison, J., dissentiente on the first point). Per Cur., judgment for defendant on all the demurrers.

Offay v. Offay. - Held, that an absconding debtor is entitled to appear at the trial, and defend in mitigation of damages. Appeal from the decision of the judge of the County Court of Huron and Bruce allowed without costs.

Board of Grammar School Trustees and the Village of Trenton-Rule discharged.

Saturday, March 9, 1867.

Kerr v. Douglas.-Rule absolute.
The Queen v. Magrath.-Conviction affirmed.
Britton et al. v. Fisher.-Rule discharged.

In the matter of the Sheriff of the County of York and the Recorder of the City of Toronto.Held, that the Sheriff of the County of York, and not the High Bailiff, is the proper person to take part in the selection and summoning of jurors. Rule absolute.

Attorney General v. Halliday. --Rule discharged; leave to appeal, on the points where leave was necessary, refused.

The Queen v. Clement.-Rule discharged. Jordan v. Gildersleeve.-Rule absolute to set aside rule.

Marrs v. Davidson.-Rule discharged.

Lyster v. Kirkpatrick-Rule absolute for eight days further time, to give notice of appeal, upon payment of costs.

In re County of Lincoln and Town of Niagara. -Rule nisi on sixth and seventh grounds.

COMMON PLEAS

Present:-RICHARDS, C. J.; ADAM WILSON, J.; JOHN WILSON, J.

Monday, March 4, 18€7. Ralston v. Hughson -Held, 1. That in ejectment by an execution creditor under a sheriff's deed against the judgment debtor, it is unnecessary to prove the judgment. 2. That a judgment roll produced by plaintiff and afterwards by consent of the court withdrawn, is as if never produced. Rule absolute to enter verdict for plaintiff.

Mahar v. Fraser.-Rule absolute for new trial on payment of costs.

Thompson v. Bennett.-Rule absolute to enter

& nonsuit.

Burnside et al. v. Marcus. Rule nisi discharged.

Marcus v. Smith.-Rule nisi discharged. McRaev. McGauvrean.-Rule absolute for new trial, costs to abide the event.

McCormick v. McGauvrean-If plaintiff elect, on or before 18th March, to reduce his verdict to 50.000 feet, and consent to a verdict being entered for defendant as to the residue, then rule to be discharged; otherwise, rule for new trial on payment of costs, on or before 4th April next.

Kelly v. Irwin -Rule absolute to enter verdict for plaintiff on four counts, for $120 damages,

Smith and Mucklestone.-Appeal from the decision of the Judge of the County Court of Frontenac, dismissed with costs.

Fisher v. Holden.-Judgment for defendant on the demurrer.

Taylor v. Brown.-Judgment for defendant on the exceptions to the first count of the declaration.

The Queen v. Muir-Stands.

Van Koughnet v. Allen-Rule to be discharged, on defendant's undertaking to file by-law permitting plaintiff to remain in possession of the property claimed by the corporation.

SELECTION.

SIR EDMUND SAUNDERS.

When a chief gives the rule "to the satisfaction of the lawyers," he may be said to have purchased to himself, in law, a good degree. It may, possibly be said, that the world cares little for the judges of the days of Charles II., indeed, that Mr. Foss, the eminent judicial biographer, has, with others, supplied any information which might be desired upon the subject. But all are not able to avail themselves of Mr. Foss's extensive labours, and the writer of this had scarcely seen his life of Saunders when this memoir was completed. The career of the Chief Justice is, moreover, especially interesting and instructive. It is always refreshing to dwell upon the privileges of our free country, in which the thews and sinews of manhood confer the power upon their possessor of emerging from the humblest condition to high estate in society. It is easy to stamp an ignoble paren

tage upon one whose merits have forced him into eminence. If, therefore, we were to hear that Saunders was nullius filius, we must regard the story, not as quite fabulous, but as deserving of the strictest investigation. As soon as a man has won success, he is a mark for the whole world, and we can appeal to our contemporaries for numerous instances where the most blatant falsehoods have been copiously and unblushingly uttered by a class whose bitterness knows no measure in the face of intellectual superiority ever commanding its natural march to preferment. But just before we enter more fully upon the biography of Edmund Saunders, we must not omit to mention with due honour his splendid annotator, Mr. Serjeant Williams, nor the able lawyer of the Common Pleas, Mr. Justice Williams, who has edited his father's notes, and whose work on executors raised himself at once to high distinction as an author. serjeant took a great delight in his notes, and he was fond of riding on horseback. would say when mounting, to Richardson, afterwards the judge, "Now, I'm going to make a long note." These elaborations are familiar to every reader of Saunders.

The

He

Saunders' obscurity of birth may be shortly passed over. Of his parents, of his relatives, little is known, and, as to any matrimonial alliance on his part we are equally uninformed. His father died, and his mother married a man named Gregory, by whom she had several children. During the siege of Gloucester, his mother's cottage was levelled to the ground. Possibly Saunders might have left his home at that time in quest of subsistence. He may be said to have stood alone in his generation. We find him, however, in Clement's Inn, a smart, industious lad, very obsequious, and especially to the attornies and their clerks. Civility, constantly employed, is with difficulty resisted, and even in the higher classes, the hollowness is often unmistakable, and yet the plausible manner is winning.

"Animus audax, subdolus, varius,

Cujuslibet rei simulator ac dissimulator."

And

At length, the society of Clement's Inn were willing to help Saunders. He was beyond question, an able scribe, ambitious of "penmanship," and, doubtless, did much small work both for high and for low lawyers. this he did, in the first instance, on a board, put up by the Inn as a desk, on the top of a staircase. Now, in order to reconcile the rapid advancement he met with to the rules of ordinary sense, we must claim for him the meed of great forensic talents.

"Ingenium ingens,

Inculto latet hoe sub corpore."

After the humblest efforts at the desk, he took what was called, "hackney business," on his own account, for which he got "a few pence." This by no means contented him. He borrowed books, made himself acquainted

with forms, and, to use the words of Lord Keeper North, became "an exquisite entering clerk." In winter, while at his work, he covered his shoulders with a blanket, tied hay bands round his legs, and made the blood circulate through his fingers by rubbing them when they grew stiff." And this sign of ability was verified in him the more he exerted his faculties, the more they expanded, till, at length, he ventured to turn his mind to that most difficult science, "Special Pleading," moreover, to take a small chamber and furnish it. Of his success in this art, we shall quickly see that his reports afford the most brilliant testimomy. It seems that he was, for some time, a practising attorney. There can be but very little doubt that he followed this vocation; and the success he acquired was mainly owing, in his particular case, to the early attachment which he formed to clerks. and their masters. It might have been thought that after this great rise by a man of the lowest origin, he would have been content, and plodded through life with his ungainly figure and still more strange habits. But the men of his day were the favourites of fortune, up to-day, down to-morrow. It mattered little whether their early advocacy was fed by fostering disputes in a gaol, or whether, when advanced to dignity, a charge of perjury might not have been interposed, so as to call from the sovereign the exclamation, "This must not be." With some of these Saunders was, by comparison, the model of rectitude, so that a young man of ordinary ambition might have but little scruple in venturing his prospects at the bar. Special pleaders under the bar were unknown in his time; indeed, there were but four eighty years since. Master, therefore, of pleading, he stepped at once to the bar, and to fair practice. It is well known that an attorney becoming a counsel is usually supported by the body, and with such zeal, that we have two, at least for chancellors, Hardwicke and Truro, who belonged to that rank. With regard to others, not akin to such patrons, it may be said-between the venture and the triumph lie oceans. He was admitted as a student in the Middle Temple on the 4th of July, 1660, as Mr. Edmund Saunders, of the county of the city of Gloucester, gentleman, and was called in less than four years afterwards.

Scarcely six years had passed after the Restoration, when the great pleader was nearly in every cause of moment; and it is recorded of him that he had the good tact to retain his clients whom he had gained. He had the habit of a great lawyer of the present day, who, from his youth up, was wont to present the same principle in different aspects until it was fully understood. This course may sometimes be tiresome to judges, but it gains the hearts of clients. "What makes you labour so?" said Twysden to Saunders; "The court is of your opinion and the matter clear." Saunders was then a young man-He was

tenacious of his legal knowledge. Some supefluous words got into a plea, which now would be instantly rejected, but the court sustained the objection, and against Saunders, who very quietly added to his note-" But I believe their principal reason was, because they would not determine the matter of law." On the other hand Saunders was contending that a fault in a declaration was matter of substance. Hale, cæteris tacentibus, ruled that it was only a matter of form. Yet Saunders urged that there were twenty books to prove it matter of substance. The chief confessed this, but he said the opinion had been otherwise for ten years past-"But I believe he meant his own opinion, said the reporter.' It is curious that Levinz, a great advocate of his day, began to take notes in the same year with Saunders; the latter, with some exceptions, contributed those cases in which he was chiefly concerned.

Levinz reported more at large, but was careful to supply on his part, the cases in which he had been counsel. At the time when forensic fortune was smiling upon Pemberton, Winnington, Maynard, Sir William Jones, Saunders, and others, his contemporaries, the latter was, most likely, living at a tailor's house in Butcher Row, with the landlord's wife for a kind of nurse to him, a very questionable kind of nurse, according to evil disposed people. Their names were Gilbert and Jane Earle. Now he might have required some occasional attention, for he was seldom without a pot of ale, served in court, and placed on the forms where the lawyers sat. Strange as this may seem, it is not so very extraordinary, if it be true that a judge of high place in one of our criminal courts was wont to have a bottle of port on the bench beside him after dinner. And truly there may be other instances. With all his intense labour, all the drafts upon his acute mind, all the energies he was obliged to display in court, the subject of this memoir seems to have been peaceable and content in the domestic circle he chose for himself. He was fond of piping, an art not very high in the scale of harmonics, but one which Virgil's shepherds loved, whose songs were "formed on fancy and whistled on reeds." But unlike to Arcadia, he drank brandy and beer the while, laying a foundation of the disorder which cut short his judicial and his pastoral life. The pipe, however, was not his only accomplishment Being invited to dine with North, the Chief Justice of the Common Pleas, he played some jigs upon the harpsichord which he learnt upon an old instrument at his landlady's. It does not appear that he was ever invited again. Nevertheless, amidst all this dissipation, he had the prudence to hand over his money which he got in profusion, to his host and hostess, and there is every reason to believe that they dealt honestly by him. He was, it may be remarked, in himself honest in worldly matters.

And now that we are in the heart of his professional career (we will come to speak of his contemporary antagonists immediately), we must pause for a moment. Sir Matthew Hale, and Saunders, the eminent advocate, were constant companions in court. Hale was not the likeliest judge to admire Saunders, although Saunders was too easy a man to conceive any great dislike to any one, far less to Hale, whom he reverenced according to his ideas of respect. In themselves, Hale might have been called a saint; he prided himself upon purity of character and conduct. His father had abandoned the law by reason of its supposed subtleties; he himself was a good criminal lawyer, and, in his day, burnt a witch, and was quite enough skilled in pleading to see through Saunders' able traps. Hale was sober and modest to a fault, Saunder never pretended to either of these virtues; yet if Saunders was on his guard against the Lord Chief Justice, the latter, in his turn, knew that he had a formidable legal foe in the advocate on the bench beneath him. It naturally followed that Hale conceived the strongest suspicions of an unfavourable character towards the pleader, and, when he conveniently could, fell upon him, if we may speak, in open court. Such rebuffs and reprimands must have damaged a lawyer of inferior attainments, for attorneys are not prone to employ counsel who have decidedly lost the ear of the court. But whoever will take the pains to read the reports of this master of the forum with even ordinary attention will quickly come to the conclusion that the pet of the attorneys would not be easily shaken by a "gloam from a great man." In truth, he was far less corrupt than many of those around him. Such was the faithlessness of the times that the very introduction of a "Quirk" might, strange to say, produce substantial justice. An example of this may be offered in a case before Lord Chief Justice Kelyng, who must have prejudiced Hale, when chief baron, against Saunders. A man gave a bond of submission, with a penalty of £2,000; the matter was referred to arbitration. The award was that the defendant should pay £3,100. Saunders, his counsel, knew that nothing was due in respect of the original debt; so, by an effort of skilful pleading, he strove to evade the inevitable course of the law. For there was the penalty, and the submission to arbitration was a crushing part of the case. Whatever the subtlety might have been, it was probably nothing more than a legal quibble, common, sad to say, to all periods of our history. His readiness and fortitude did not, however, forsake him; he showed much spleen at the interruption of Kelyng and declaimed against the hardship upon his client, whose payment was fixed at £1,100 more than the penalty, admitting the existence of a debt. True, on the one hand, constant disappointment and censures sour the temper, deaden the faculties, and sicken the heart. But, on the other, our

forensic friend was never crabbed; his wit was ever active, and heart always merry.

Johnson was fond, says his biographers, of collecting a crowd round him, and letting the exuberances of his wit flow for the diversion of the bystanders. It was no wonder that he left Oxford without a degree, for he was not over fond of subordination, and he laughed at discipline.

Saunders had a number of young men hanging about him when he moved about in the Temple. He would stand at the bar, before the sitting of the court, and put and debate cases with them, and urge them to industry, and many a joyous jest would he pass with them. They voted him almost a Silenus

Inflatum veteri venas, ut semper, Iaccho. Et gravis attritâ pendebat cantharus anså." The coarseness of his humour was in keeping with his day. We will only give one instance. Speaking of his having no children (he had none), he said, "By my Troggs, none can say I want issue of my body, for I have nine in my back."

Some few words as to his contemporaries during his battles in court.

Sir William Jones was a famous attorneygeneral of that period. He was in much business, and not unfrequently opposed to Saunders. In parliament he advocated the Exclusion Bill with great force. But he was morose and uncompromising, so that the court party could not endure him. Nevertheless, the great seal was offered to him, but he tired of his profession, like Mingay, the well-known king's counsel of later years, and shunned preferment in the zenith of his fame. At one time he was so high in estimation as to have the care of remodelling the bench of judges. It was at the juncture when Lord Danby's friends were turned out and some barons of the Exchequer, who did not give satisfaction in their office. A friend of Essex and Russell, and a staunch opponent of the Quo Warranto Informations, his unpopularity with the gov ernment increased after his retirement from practice, and had he not died in 1 82, it is surmised that he might have been involved in the Rye House Plot.

We may also mention Kelyng or Keeling, the son of the Chief Justice (the only lawyer who was king's counsel and king's serjeant, and he not a real king's counsel, but only for the occasion, and without salary).* Winnington, afterwards solicitor-general, a noted lawyer of that day; Coleman, a person of considerable repute, and often opposed to Saunders; Conyers, afterwards Chief Justice of Chester; Weston, Powys, and Powlet. Lastly, there was that extraordinary man who stood, beyond comparison, at the head of his profes

*This Sir John Kelyng was king's counsel extraordinary. He was what Wynne calls "individuum vagum" For want of attending to this distinction, many have pronounced Bacon the first king's counsel instead of North or Turner, whereas Bacon and Kelyng were merely extra rdinary, without salary or fee, whereas the king's counsel had £40 a-year.

sion, Serjeant Maynard. The singular pliancy of Maynard enabled him to steer safely through four very unstable governments. He began his career in the reign of the first Charles; he was the Protector's serjeant, and, then, all being forgotten, he was made a king's serjeant at the restoration; he passed through the reign of Charles II. in the plenitude of business, and having wisely remained tranquil during the brief dominion of James, became William III.'s Chief Commissioner of the Great Seal, when nearly ninety. There were some curious passages between Maynard and Jef freys. Jeffreys, who never failed to abuse all within his reach with fearless impudence, stood in awe of Maynard, and of him alone. Jeffreys, though quick, was not accurate, so that a stormy discussion would often arise between him and the bar. Upon such an occasion Maynard would rise as amicus et censor curia, and calmly explain what the law really was. Upon this, Jeffreys would in. stantly take up the matter as Maynard put it. and woe to him who should pretend to dispute the serjeant's view! adversary of this great man was the future The only formidable Chief Justice, Sir Edmund Saunders. In a word, what the latter wanted in artifice (we fear we must use that expression), he made up by an admirable cunning disguised under simplicity, and backed by special pleading.

The life of a distinguished lawyer, great though he be, is soon summed up. Saunders was a reporter for about four years, and as he had no particular political bias, but was willing to obey the powers that be, as soon as Pemberton was removed, the court cast an eye on him as a fitting judge to carry out certain state achievements which they had at heart. For he was already the chief draftsman in all indicments and informations on behalf of the Crown. However, he was counsel for Mrs. Price, indicted in 1680, for an attempt to stifle the Popish Plot, but he did. not succeed against Dugdale, the notorious witness. He was also counsel for Viscount Stafford, but did not argue much. He was counsel against. Fitzharris in 1681, against whom he was unnecessarily severe, even rude, but his law was conspicuously eminent when compared with the pleading of the numerous Crown counsel for the prosecution. In 1681 he was counsel against Lord Shaftesbury; but in 1682 he appeared to support Lord Danby on his application to be bailed, and upon this trial we find the dry answer which he made to the wrathful Pemberton, who insisted that Saunders attempted to impose upon the court by attributing opinions and remarks to them, which the Chief Justice said they had never made. This was not so very unlikely; but Saunders quietly begged pardon if a mistake had been made, only, "he did believe the rest of his brethren took it so as well as himself." And he had avoided the intrigues of faction by his invincible good humour and matchless shrewdness.

Now it was contemplated at court that if, under a fair pretence, the charters of the kingdom could be seized, a magnificent triumph over their opponents, the enemies of the Duke of York and of Popery, would be gained. And they had another object within their hopes which historians have dealt with, though scantily; the refreshing by fines, of a lean exchequer. In the year 1682 he was made a Bencher of his Inn, and the 22nd December, Saunders was made Chief Justice of the King's Bench, and was knighted. He was called Serjeant on January 13, and took his seat on the same day. He had not the slightest idea of such a promotion, and he scarcely seemed to wish it, for he must needs leave his tailor and Butcher Row, and emigrate to Parson's Green. It was supposed that the King liked him for his jovial behaviour, so he gave "Principi sic placuit" rings.

66

He was never

He did not, however, survive his promotion for one year, and, before his death he was so lost, that when his brethren came to him to enable them to confirm his opinion against the city on the Quo Warrantos, he expostulated with them, asking why they would trouble him, when he had lost his memory." So he died at Parson's Green, on the 19th of June, 1683, in the 51st or 52nd year of his age, of, it is said, apoplexy and palsy. sworn of the privy council, although when Pemberton was finally removed from the bench, he was consoled with that distinction. Saunders heard the arguments on the law warrants against the city, and he presided at the trial of Sir John Pilkington and others, for a riot, and assault upon the Lord Mayor, Sir John Moore, who warmly supported the court party in the dispute concerning the election of sheriffs. When the defendant's counsel in this case came to challenge the array, Saunders broke out "Gentlemen, I am sorry you have so bad an opinion of me as to be so little of a lawyer as not to know that this is but a trifle, and nothing in it. Pray, gentlemen, don t put these things upon me.' Here the judge reflected that he was really beloved by the bar for his good nature, and so he went on,"Because I am willing to hear anything, and where there is any colour of law I am not willing to do amiss; therefore, you think I am now become so weak that you may put anything upon me." He had a strong remembrance of Hale,-" You would not have done this before another judge. You would not have done it if Sir Matthew Hale had been here." The defendants were convicted and fined.

The death of this Chief Justice was probably a coincidence. The sedentary employment of a judge would scarcely have accelerated his end in so short a time. Relief from the toil of advocacy would rather have had a favourable tendency. He was badly, mortally diseased before his appointment, and it was a marvel that his mind, even for so few months, was competent to sustain his enfeebled body.

[P. C.

It is difficult to speak of a man's character of whom it can scarcely be said that he had any. The reader can form his own judgment from the materials we have supplied. It is affirmed that he never deserted the tailor and his wife, although he moved into the country. And certain it is that he must have kept his eye upon his relations in the country, since he mentioned them so distinctly in his will. He left something considerable behind him, which he derived, probably, from the care of these people. His will was dated 23rd Aug. 1676, republished 2nd Sept. 1681, and proved 14th July, 1683. His executor and executrix were the tailor and his wife, and they were made residuary legatees, as some recompense for their care of him, and attendance upon him for many years." His works must be at once comprised in his immortal reports. His book has been called the Bible, and he himself by the great Lord Mansfield, the Terence, of Pleaders.-Law Magazine.

แ

In December last, shortly after the making of the award, the attorney who had acted for Potter in the arbitration was served by the attorney for Burns with a notice of the award having been made, and the directions contained in it, and a demand of the said amount payable to Burns.

On the 9th February, 1867, Mr. McMillan, the attorney for Burns served Potter with a copy of the rule making the deed of reference a rule of court of the award, and of the power of attorney from Burns to his attorney to receive money, &c., and as was stated in the affidavit of such attorney, he at same time demanded from Potter the amount awarded, though, as was alleged by Potter afterwards, no explanation as to the facts, &c, was given, nor was a proper or sufficient demand made. Immediately after this, Potter tendered to Burns' attorney the sum of $40 57, but, as he refused