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Digest OF ENGLISI Cases-GENERAL CORRESPONDENCE.
houses were built in the town-Goldsmid v. PARTICULARS. Tunbridge Wells Improvement Commissioners, In an action on a life policy, the defendant Law Rep. 1 Eq. 161; S.C. on appeal, Law Rep. having pleaded, that the proposals declared that 1 Ch. 349.
the life insured had not had symptoms of cer3. An injunction was granted restraining a tain diseases, or any other complaint, whereas local board of health from permitting sewage he had had symptoms of disease of the stomach, to pass through drains under their control into the court ordered particulars of the symptoms a river, to the injury of a miller residing below delivered. - Marshall v. Emperor Assurance Sothe outfall of the drains. The company did ciety Law Rep. 1 Q. B. 35. not stop the flow of the sewage, but alleged See PATENT, 6, 6. that they had not yet discovered means of
(To be continued.) deodorizing it; that obedience to the injunction would be practically impossible, without stop- GENERAL CORRESPONDENCE, ping the sewage of the town; that there had been no wilful default; and that a sequestration
Articled Clerks-Admission would be useless, as the property of the Board
TO THE EDITORS OF THE Law Journal. was public property. Held, that there had been a contempt, and sequestration was ordered to
GENTLEMEN, -I was articled in July, 1863, issue.--Spokes v. Banbury Board of Health, Law
and consequently would go up for admission Rep. 1 Eq. 42.
in Trinity term, 1868. Would the Law So4. A canal company, empowered by its act ciety, having as I understand abolished Trinity of incorporation to take water from a stream, Term, allow me to go up for admission in Easthen pure, but since become polluted, had been ter Term in that year? I have myself come with its lessees (whose lease was about to ex- to the conclusion that they would, from a few pire), indicted for a nuisance, in allowing the remarks of yours in the Law Journal of 1865, soul water to stagnate in their canal; and judg ment had been entered against the lessees, who It would be too bad to throw a great numhad appealed. To an information against the
ber of us back for four or five months. An company and their lessees, the company admit
early answer will oblige several ted the polluted state of the water, but insisted
LAW STUDENTS. on their right to draw it, however foul; and said they should probably continue to draw it [Our information leads us to think that such on the expiration of the lease. Held, that the
a conclusion is incorrect. The Benchers have appeal pending at law was not a bar to an
in this case no discretion, and cannot, as they injunction; that it was no answer to say that
can in some cases, permit a clerk to go up for the company did not pollute the water, as they
examination before his time is out, and even could draw it or not, as they pleased; nor to
when they can exercise their powers in favor say that the informants might be left to their legal remedies ; nor to say that a worse nuisance
of the student, he cannot be sworn in until his would be created in the stream; nor to say that
time is fully up.
You could not therefore, the lessees were the active offenders, inasmuch
unless we are misinformed, go up either for as the company had set up their rights in the
examination or admission until Michaelmas answer: and injunction was granted to com
Term.-Eds. L. J.] mence after eight months.— Attorney Genera! v. Proprietors of the Bradford Canal, Law Rep.
Appointment of Official Assignees. 2 Eq. 71.
TO THE EDITORS OF THE LAW JOURNAL. 7. In an injunction to restrain the pollution
GENTLEMEN, —Just before the publication of of a stream, it is proper to insert the words,
your article in the last issue of the U. C. Law "to the injury of the plaintiff.”—Linwood v.
Journal, a question of some importance upon Stormarket Co., Law Rep. 1 Eq. 77. 6. If a judgment at law has been obtained
the subject referred to, came up, as questions for a nuisance affecting real estate, and substan
do very frequently arise, upon which I should tial damages given, an injunction will almost
like to see some discussion in your Journal. of course be granted to prevent the continuance
The creditors prosecuting a compulsory proof the nuisance. — Tipping v. St. Helen's Smelt ceeding by attachment in insolvency, applied ing Company, Law Rep. 1 Ch. 66.
to the judge of the County Court here, under Parol EVIDENCE. See CARRIER, 6; LEGACY, 7;
the 13th sub-section of the 3rd section of the Will, 6.
Insolvent Act of 1864, for an order appointing
GENERAL CORRESPONDENCE-APPOINTMENTS TO Office, &c.
on Will you, Messrs. Editors, favour us with
a meeting of creditors to be held before the by any reasonable intendment be held to be judge of and in another county. Our judge the judge of the County Court of the county did not refuse, but granted the order as asked in which the proceedings are carried on. for, intimating, however, that although he was And again, that supposing the 13th subaware some other county judges had made section might authorize the meeting of credisimilar appointments, he himself entertained tors to take place before such other judge, grave doubts as to its legality, for that the that “other Judge" could only take the advice words of the 13th sub-section failed to satisfy of the creditors upon the appointment of an him that he was at liberty to impose such a official assignee; he could not appoint the duty upon the county judge of another county, assignee, because the 14th sub-section proor that the duty could be discharged at all by vides that “at the time and place appointed, any one out of the county where the proceed and on hearing the advice of the creditors ings were being carried on; that there was present upon oath,” &c., The Judge” (and nothing in the statute to require the judge of not the "other Judge”) shall appoint, &c. *** the other county to discharge the duty, and and if the creditors are not unanimous, then he might well say, upon such an appointment "the Judge" may appoint, &c. being made for him, that his own appoint- Our judge maintains that the words “ The ments were all that he could reasonably be Judge” can only mean such judge as the intersupposed to keep, and that the duties of his pretation clause points out, and that the 17th own courts were all that he could attend to.
and subsequent sub-sections of the 3rd section At a subsequent day, the plaintiff's solici- prove this position. tor, not wishing to risk a large estate upon so doubtful a question, got the appointment your views on this question, or invite the corchanged, ordering the meeting to be held be respondents of the U. C. Law Journal to disfore the judge here. In a subsequent case,
cuss it, because it is said that the whole “Bar" a similar order to the first was asked for, of the city of Hamilton are unanimous in an appointing the meeting to be held in a distant opinion adverse to that entertained by the city, before another judge, when the judge of judge and bar here. this county, having more maturely answered
Oblige, the question, refused, decidedly, to grant the
Yours respectfully, order, and referred to the words of the inter
A SUBSCRIBER. pretation clause of the act; that is, the 4th
20th February, 1867. sub-section of the 12th section, as explaining the words, “ The Judge," and the words, “or
[We have not at present time to devote to any other Judge" (where they respectively the consideration of the subject above referred occur) in the 13, 14, 17, 18, 19, 20, 21, & 23rd to, but we should be glad in the mean time to sub-sections of the same act. That by the 4th
hear from those who may have had occasion sub-section of the 12th section, those words, to investigate the point, which is, we believe, a as applicable to Lower Canada, may be under- new one and of great importance.]—Eds. L. J. stood, because it is well known that the judges of the Superior Courts of Lower Canada have APPOINTMENTS TO OFFICE. not merely jurisdiction over a county, for there are several Superior Court judges having jurisdiction equally over the same section or terri.
JOHN COYNE, of Brampton, Esquire, Barrister-at law, to
be a Notbry Public for Upper Canada. (Gazetted 23rd tory, which is not the case in Upper Canada, February, 1867.) unless there is a junior judge in the same
JOHN MCKINDSEY, of Both weil, Kequire, Attorney.at:
law, to be a Notary Public for Upper Canada. (Gazetted county with the senior judge; that the juris
23rd February, 1867. diction in Upper Canada is purely local, con
CORONER. fined to one county, held only by resident
CABEL ELSWORTH MARTIN, of Lindsay, Esquire,
M.D., to be an Associate Coroner for the County of Victoria. judges, and that, therefore, whilst the words (Gazetted 23rd February, 1867.)
‘any other Judge” may mean a junior or a
" LAW STUDENT" - "A SUBS RIBER" -- Under « General
CONTEMPT OF COURT IN LOWER Canada.
25. Thurs. St, Mark.
Upper Canada Law Journal.
DIARY FOR APRIL.
cles in the Montreal Gazette of the 27th and
29th of August last. * 1. Mon... County Court and Surrogate Court Term com- It was submitted, amongst other things, by
mences. Local School Superintendent's term
the plaintiff in ror, that, as no man can be a 6. Sat..... County Court and Surrogate Court Term ends.
Local Treasurer to return arrears for taxes judge in his own cause, and as Mr, Justice
due to County Treasurer. 7. SUN... 6th Sunday in Lent.
Drummond was himself the complainant, he 14. SUN... 6th Sunday in Lent.
was precluded from sitting or giving any 19. Friday Good Friday. 21. SUN... Easter Day.
judgment on the rule. Before going into 23. Tues... St George. 24. Wed... Appeals from Chancery Chambers.
the merits of the case, Mr. Ramsay objected 28. SUN... Low Sunday.
to the competency of Mr. Justice Drummond 30. Tues... Last day for Non-Residents to give list of their to sit in the case, on the grounds that he gave
Jands, or appeal from assessment. Last day
was the party complainant in this case; but the
court were, and we should think very properly, THE
unanimously against him on these points. The first point was urged under the wording of the statute, and the second bore an impres
sion of reason, owing to the unhappy manner APRIL, 1867.
in which the judge had conducted himself throughout the proceedings antecedent to this
appeal. CONTEMPT OF COURT IN LOWER
Mr. Ramsay, on same day, applied, with tho CANADA.
consent of the Attorney-General, for leave tə Our professional brethren in the Lower Pro- appeal to the Privy Council. This being revince may be congratulated, if such a subject fused ( Mondelet, J., dissenting,) he moved, can be the subject of congratulation, upon the | with the like consent, to discharge the inscripvery thorough knowledge they must almost tion, contending that the court could not internecessarily have acquired lately of that branch fere, that the Crown was dominus litis ; that of legal lore known as Contempt of court. it had been declared by the court that mornThe subject is somewhat extensive, using the ing that it was not Mr. Justice Drummond; term in its general sense, but in the sense in that it was the Queen, who was represented by which it has come so prominently before the the Attorney General, (citing The Queen v. people of Lower Canada, it is happily little Howes, 7 A. & E. 60.) The court, however, heard of.
refused to recognise the right of the Attorney In fact so little does it affect us in this part | General to abandon a proceeding for contempt of the Dominion of Canada, that it would (Mondelet, J., dissenting). Leave to appeal seem unnecessary to notice it, but we cannot
from this was also refused. well ignore what is taking place in legal mat
The question then remained to be discussed, ters within the courts of Lower Canada, parti- whether or not a writ of error would lie cularly where the points involved are not in from a judgment for contempt. The court their nature of a character having reference to
was not unanimous upon this point, the mathat part of its laws which have no bearing jority holding that it would not, and Monupon ours.
delet, J., thinking that it would, and arguing The Ramsay contempt case, as it is called forcibly enough the impropriety of the same in Lower Canada, has again entered its ugly
individual being, as he might be, he contended appearance in court. This time in a Court of
in cases of this kind, the accuser, witness and Error and Appeal, under the name of Ramsay judge, and his judgment final and irreversible. plaintiff in error v. The Queen, defendant in
But we think he travelled out of the record,
and his remarks favoured of what is vulgarly error, on a writ of error from a judgment of Mr. Justice Drummond, holding the Court of
termed “claptrap” when he said, “For my. Queen's Bench, Crown side, at the last term of
self I want no such privilege ; not only as a the court, for the district of Montreal, on a
citizen but as a judge I invite the scrutiny of rule for a contempt of the Court of Queen's
the public eye. If I am honest, I have nothing Bench by Mr. Ramsay, in publishing two arti
* See p. 2U.C. L.J., N. 8. 283.
CONTEMPT OF COURT IN LOWER CANADA.
to fear; and if I am dishonest, the sooner I the Judicial Committee of the Privy Council am found out the better."
see fit to entertain an appeal from the judgment But whilst upholding the right of free judg- of the court. For our part, indeed, we hope that ment and fair criticism as to the acts and con
this unpleasant episode respecting legal life in duct of persons holding judicial positions, we
this Canada of ours may not be further agitated must be very watchful that such criticism is in the English courts, and that however interfair, and not pushed to such lengths as to bring esting the points in dispute may be in themthe judicial office, as distinguished from the selves, they may be considered settled as they individual holding that office, into contempt,
now stand. and that remarks should not be made, which, That such a state of things as have resulted however true they may be in themselves, are in the cause celebre of Ramsay, plaintiff in calculated to diminish the respect due to the error, v. The Queen, defendant in error, exlaws, or to lessen the confidence of the public hibits, could not well occur in this part of in their due and just administration.
Canada, we may well be thankful for. That Whilst admitting the apparent impropriety such a boast may be as true of the future as it urged by Judge Mondelet, as to the same has been of the past, should be the constant person acting in a variety of capacities, it is aim and exertion of all those, who, on the equally clear that Judge Badgley went to the
bench or at the bar, or in the study of the root of the matter when he said, “Arguing laws, desire the welfare of their country. The from the mere reason of the thing, it is a plain heritage left to us by those able, courteous, consequence, that contempts would necessarily and high-minded men who set the standard of fail of their effect, and the authority of courts the profession in Upper Canada cannot be too of justice would become contemptible, if their highly prized; and he who first, whether by judgments could in such matters be subjected his conduct on the bench or at the bar brings to revision by any other tribunal.” The same discredit upon their teaching, will, we doubt view of their matter was years ago taken by not, meet the universal contempt, which such that eminent jurist, Chancellor Kent, (referred
conduct would deserve. to by the Lower Canada Law Journal, from The Bench of Lower Canada is not (with which we take it,) when, in criticising a pro- some honourable exceptions) what it ought posed penal code for Louisiana, which contain- to be. The conduct of Lower Canada judges ed a provision for the trial of matters of con- has, on more than one occasion, caused Canatempt by a jury, he said, "Under such a state dians to blush ; and we regret to say that of law, no one would be afraid to offend; the people abroad know no distinction between delay of punishment and the manner and the Bench of Upper and Lower Canada, and chances of escaping it, would disarm the ex- so in their ignorance cast upon the Bench of pected punishment of all its terrors, nor could Canada, the obloquy which appertains to that the insulted court or judge ever think of the of the Lower Province alone. attempt to cause the infliction of p:nishment under so many discouragements. It would be idle for the law to have the right to act, if
The prosecution of Governor Eyre in Engthere be a power above it which has a right to
land appears to have come to nothing, the resist. In criminal matters penal law must
Grand Jury having thrown out the bill. The enforce satisfaction for the present acts and
address to that body by Chief Justice Erle is security for the future; in other words it inust
said to have been an effort worthy of that have a remedy and a penalty. How could
learned judge, and to have occupied some six there be either a remedy or a penalty, if the
hours in its delivery. The necessity for the judgment of contempt was subject to review protection of persons acting honestly in the by any other tribunal."
difficult position such as that in which this Apart from this, the weight of authority ap
well abused Governor was placed has had its pears to be against the allowance of any appeal proper weight. in matters of contempt, and such was the opi. nion of the court in the present case; and so the Our readers will observe that Mr. Harrison's matter stands at present, unless indeed, as is Municipal Manual has been completed, and is remarked by our Lower Canada contemporary, now ready for delivery in a bound form.
ORDERS OF COURT OF CHANCEKY.
ORDERS OF COURT OF CHANCERY. and that you (or the said infunt or person of
unsound mind) may, upon service of notice The following Orders were promulgated on, upon the plaintiff, attend the proceedings and bear date the 1st April, 1867.
under the within decree; and that you (or the 1. Every paper to be filed in the office of the
said infant or person of unsound mind) may, Registrar at Toronto is to be distinctly marked within fourteen days after the service hereof, at or near the top or upper part thereof, on the apply to the Court to vary or add to the said outside, with the name of the city or town in decree. A. B., of the City of Toronto, in the which the bill is filed; and the Registrar is County of York, Plaintiff's Solicitor." not to file any paper which is not so marked.
10. Where any person required to be served 2. In ordinary suits for foreclosure or sale
with an office copy of a decree, pursuant to against infant heirs or devisees of the mort
section 2 of Order 6 of the General Orders of gagor, or of the assignee of the mortgagor, June, 1853, is an infant, or a person of unsound where no defence is set up in the infant's
mind not found so by inquisition, the service answer, the cause is not to be set down to be
is to be effected upon such person or persons, heard in Court by way of motion for decree; and in such manner as the Master before whom but after the infant's answer is filed, or after the reference under the decree is being prosethe time for filing the same has expired, the cuted shall direct. plaintiff is to file affidavits of the due execution of the mortgage, and of such other facts
11. At any time during the proceedings and circumstances as entitle him to a decree,
before any Master under a decree, the said and is to apply for the decree in Chambers,
Master may, it he thinks fit, require a guar
dian ad litem to be appointed for any infant, upon notice to the infant's solicitors.
or person of unsound mind not found so by 3. A defendant may claim, by answer, any inquisition, who has been served with an office relief against the plaintiff which such defen.
copy of the decree. dant might claim by a cross bill.
12. Guardians ad litem for infants, or per4. All exhibits put in at the hearing of a sons of unsound mind not found so by inquicause, are to be marked thus: “In Chancery sition, who shall be served with an office copy (short title]. This exhibit (the property of of a decree, are to be appointed in like manner
--) is produced by the plaintiff (or defen- as guardians ad litem to answer and defend dant C., as the case may be), this
are appointed in suits on bill filed. 186- A. B." (the Registrar or Deputy
13. Trustees, agents, and other persons in Registrar.)
a fiduciary situation, are not to bid under the 5. Every decree or order is to be bespoken, general order giving parties liberty to bid; and the briefs and other documents required but liberty in the case of such persons is only for preparing the same are to be left with the to be obtained on a special application. Judges' Secretary, within seven days after the decree or order is pronounced or finally
14. Upon every order of revivor served in
pursuance of the order of 6th June 1862, disposed of by the Court.
there is to be endorsed a memorandum in the 6. In case any decree or order is not bespo- | form or to the effect following, that is to say: ken, and the briefs and other documents are “ Take notice, that if you desire to discharge not left within the time prescribed by the this order, you must apply to the Court by next preceding rule, the decree or order is not motion or petition for that purpose, within to be drawn up without leave being obtained fourteen days after the service hereof upon on an application in Chainbers.
you. The original bill in this cause is filed in 7. The plaintiff, on applying for a decree on the office of the Registrar (or Deputy Regispræcipe, is to produce to the Registrar an trar) at ;" and if the service is after a office copy of the bill, in addition to the papers decree directing a reference to a Master, add, required by Order 4 of the General Orders of "and the reference under the decree in this 10th January, 1863.
cause is being prosecuted in the office of the 8. Decrees, Special Orders and Reports are
Master, at to be divided into convenient paragraphs, and
15. No certificate for an increased counsel such paragraphs are to be numbered consecu.
fee, or for two counsel fees, is to be granted tively.
ex parte, unless the certificate is applied for 9. Upon every office copy of a decree served,
within thirty days after judgment is given. pursuant to section 2 of Order 6, of the General Any application afterwards is to be on notice, Orders of June, 1853, there is to be endorsed
and at the expense of the party applying. a memorandum in the form or to the effect 16. To secure uniformity of taxation, no following, that is to say: "Take notice, that bill of costs exceeding $30 is hereafter to be from the time of the service hereof, you (or, taxed by the Accountant, Registrar, or Judges' as the case may be, the infant or person of Secretary, except in cases of decrees on prae unsound mind) wil. be bound by the proceed cipe, and under the second of these Orders, ings in this cause in the same manner as if you where there is no reference; and any costs (or the said infant or person of unsound mind) heretofore directed to be taxed by the Accounhad been originally made a party to the suit; I tant, Registrar, or Judges' Secretary, are to be