tained the action. The Lord President in of his opinion: To talk of Scotland as a rendering judgment observed : "It is evident that if we pronounce judgment in terms of all or any of these conclusions against the defenders there will arise immediately a conflict of jurisdiction between this Court and the Chancery Division of the High Court of Justice in England. This is a very serious matter, and we must therefore deliberately consider (1) what are the relations of the two Courts, and (2) what are the grounds on which the jurisdiction of each Court to deal with this trust estate is maintained. I. As to the relations of the two Courts, I hold that, in proper questions of jurisdiction such as the present, the judicatories of Scotland and England are as independent of each other, within their respective territories, as if they were the judicatories of two foreign States. I am anxious to formulate this rule, which is the necessary result of the Treaty of Union, with as much accuracy and precision as possible, because a loose and illogical statement of so important a constitutional doctrine is both dangerous and mislealing. I have been, however, so much accustomed to regard it as an incontrovertible position that I was somewhat surprised to read in the Chancery proceedings which have been laid before us this passage in the judgment of so very learned and able a judge as the late Master of the Rolls: 'I caught during the argument an expression to which I do not assent. Scotland was called a foreign country-a foreign jurisdiction. All that in my opinion is quite erroneous. Ever since the union of the kingdom of Great Britain, Scotland has been an integral part of Great Britain; it is not a foreign country.' I sympathize with the learned judge so far that Scotland and England cannot with strict propriety be spoken of as being in the relation of foreign countries. But as the proposition with which he was dealing was, as he says, only caught during the argument,' he was probably misled by inaccuracy of expression; and the proposition itself, if expressed more precisely, might have commanded his serious attention. I do not say it would probably have altered his judgment on the caso before him. But it might have enabled him to avoid what follows in the statement 6 foreign country, and to say that the same rules apply, is, I think, a total error. It is not only an integral part of this kingdom, but the judgment of this Court can be enforced in Scotland in the same way that the judgment of a Scotch Court can be enforced in England. But there is more than that. In the case of a foreign country there is the difficulty of ascertaining the foreign law, and where questions of foreign law arise, it is certainly very inconvenient to try them by the sworn and unsworn testimony of advocates and experts as to what the law is. It is much more convenient, of course, to obtain the decision of the judges of the country on the law of their own country. Well now, what has the Legislature done? Recognizing that the Legisla ture has empowered the English Courts, where a question of Scotch law arises in the course of English litigation, to take the opinion of the Scotch Courts, which they are bound to give, and correlatively has empowered the Scotch Courts to take the opinion of the English Courts on a point of English law arising on Scotch litigation, there is therefore no difficulty at all in deciding a point of Scotch law in England, because they decide it not in England, but in Scotland, and so with regard to English law in Scotland, because that would be decided in Scotland; all those difficulties are therefore purely imaginary.' Before adverting further to the reasons which seem to have led the learned judge to the conclusion that in questions of jurisdiction Scotland and England do not stand in the relation of foreign kingdoms, the Lord-President cited one very weighty authority, which is in terms contradictory of this proposition. In the appeal to the House of Lords from this Court regarding the guardianship of the present Marquis of Bute, Lord Campbell, as Chancellor, thus expressed himself:-'I beg to begin by observing that, as to judicial jurisdiction, Scotland and England, although politically under the same Crown, and under the supreme sway of one united Legislature, are to be considered as independent foreign countries, unconnected with each other.' The Master of the Rolls seems to have been misled into the opinion he expressed, in op know or administer, are authorized by Acts of the Imperial Legislature of the United Kingdom. But the same reciprocal advantages and conveniences might be brought about in the case of English and French Courts, or of Scottish and Dutch Courts reciprocally, not, indeed, by an Act of the Parliament of the United Kingdom, but by treaty or convention; and it could hardly be contended that the effect of such treaty or convention would be to affect the relation of these Courts to one another in a conflict of jurisdiction." to The judicial factor having been appointed, the agents of the trustees declined to allow him to take possession of the books and documents, and it became necessary to make a new application to the Court of Session "to grant warrant to messengers-at-arms” take possession of the books, etc. The Court as a matter of course immediately granted the necessary warrant to enable the judicial factor to enter into possession. The trustees had refused in the first instance to let the judicial factor assume possession, in order that they might be able to say to the English Court that they had not voluntarily parted with the assets, and that they were constrained by force. The conflict is thus made one solely between the Courts, the trustees being freed from all responsibility in the matter. The Scotch journals are somewhat absurdly excited on the subject. "The Orr Ewing case," says the Scotsman, is but the flag under which a great and most important battle is being fought-a battle which can only end in vic position to this high authority, by the supposed operation and effect of recent statutes providing for the enforcement of Scottish judgments in England and of English judgments in Scotland, and also for the more convenient ascertainment of the law of one part of the United Kingdom by a Court in another part. By what is known as 'The Judgments Extension Act,' 31 and 32 Victoria, c. 54, a judgment of a Court of Common Law in England for debt, damages, or expenses (but not an order or decree of the Court of Chancery), may be enforced in Scotland by the party holding the judgment producing to a registrar in Scotland a certificate of the judgment, and having it registered. And e converso, a judgment by this Court for debt, damages, or expenses, (but not any other kind of order or decree), may, by a corresponding proceeding, be enforced in England. But this gives no jurisdiction to the Scotch Court in the matter of the English judgment, nor jurisdiction to the English Court in the matter of the Scotch judgment; the one remains an English judgment throughout, though endorsed, so to speak, by a Scotch official under the authority of the statute, and the Scotch judgment also remains throughout a Scotch judgment, though endorsed by an English official under the like authority. The 22d and 23d Vict., c. 63, 'to afford facilities for the more certain ascertainment of the law administered in one part of Her Majesty's dominions when pleaded in the Courts of another part thereof,' provides in effect, that in any suit or proceeding, when the facts are ascertained, a case may be sub-tory for Scotland. The encroachments of mitted by a Court in Scotland to a Court in England to ascertain the law of England applicable to such facts, or by a Court in England to a Court in Scotland, to ascertain the law of Scotland applicable to such facts. But how the passing of such an Act can affect the jurisdiction of any of the Courts in Scotland or England, or their relation to one another in the matter of jurisdiction, does not at all appear. These very convenient reciprocal provisions for the enforcement of Scotch judgments in England and English judg-grounded they may be. All this has gone ments in Scotland, and for the more convenient ascertainment by any Court of the law which that Court does not judicially English Courts have been tolerated too long, and, as a consequence, they have been pressed beyond endurance. The spirit shown in England in regard to the matter is in strict accordance with that which guides the treatment of most Scottish matters. Scotland is dealt with as if she had no rights and no national institutions. Governmental officials will not consent to believe that Scottish affairs are worthy of notice. Scottish demands for attention are disregarded, no matter how well on for long, and has become intolerable. The demand for a Scottish Secretary is, in effect, part of the protest against it, and a most im portant part. Scotland, it is seen, needs a representative in the Administration, who shall be able and willing to see that, on the one hand, she has due attention to her requirements, and, on the other, that her rights are not trampled upon. The action of the Court of Session will give a powerful impulse to this demand. That action raises, in legal form, a direct conflict between England and Scotland, and in this way shows that Scotsmen have institutions of their own which they prize, and which cannot be set aside by the will or by the neglect of Englishmen." THE CINCINNATI RIOTS. "Mob or Magistrate," in the Century for April. Everybody has been horrified this week at the sacrifice of innocent blood in Cincinnati; yet, upon the whole, we are not sure that this is not one of those outbursts of which the permanent effect is wholesome. If Messieurs les meurtriers would only cease killing, capital punishment with all its disgusting concomitants would speedily die out, and just as truly, if justice were speedily and fearlessly executed by the regular machinery, lynch law would soon be a thing of the past. The outbreak in Cincinnati resulted from what appears to be a serious miscarriage of justice. Our contemporary, the Weekly Law Bulletin (Cincinnati, O.), March 31st, referred to the case (before the riot), in these terms: "The result of the Berner murder trial last week in Cincinnati has caused the deepest feeling among all classes. Six times the On the 31st ultimo, the Seduction Bill, in prisoner had confessed to his participation its amended form, came before the Senate, in the most brutal and cold-blooded butchery, when it appeared that a majority of the giving all the details of the horrid affair, and House were opposed to the measure, and the only a few days before his trial had offered three months' hoist was carried on division. to plead guilty to murder in the second degree, Mr. Dickey remarked that the bill had been the prosecutor refusing on behalf of the objected to by "the highest judicial authorpublic, as the evidence was absolute and un-ity in Ontario." It is also well known that questioned. Yet the jury brought in a verdict of manslaughter only. The finding is condemned in the severest terms everywhere, by the people and by the papers. The changes in the jury law just made by the present legislature come none too early, and, it is to be hoped, will give us better and more competent juries.” THE SEDUCTION BILL. the disapprobation of the most experienced judges in Quebec is equally emphatic. There was one portion of the bill, however, which seems to be called for, and which, alone, would not have met with any opposition; we refer to the clause with regard to inveigling young women into houses of ill-fame. This is an offence of a serious character, and the Government have promised to introduce a measure next session which shall provide The subject is not overlooked by the class who think, and as an evidence of this we may quote from the writer of the article, I for its punishment. JUDICIAL BREVITY. Chief Justice Waite, of the Supreme Court of the United States, sets a laudable example in the matter of short judgments. The Amer ican Law Record (of Cincinnati, O.) quotes two examples. In one case (infringement of a patent) the opinion of the Chief Justice occupies just six lines of type, and in the other case just five lines, which we will print as an illustration: "This judgment is affirmed. One partner cannot recover his share of a debt due to the partnership in an action at law, prosecuted in his own name alone, by the bill of exceptions in this case. The refusal of the Court below to grant a new trial is not reviewable here. Affirmed." against the debtor. That is the only question presented 2nd. of land. The plea set up an indebtedness by plaintiff as universal legatee of the alleged debtor of $1,022, consisting of: 1st. $111.25 arising out of certain joint transactions between defendant and deceased. $206.17, paid out by defendant for deceased. 3rd. $519.60, money received by the deceased to the use of defendant. 4th. $185.25, amount of a bill for professional services rendered by defendant as a medical man to the deceased. PER CURIAM. The defendant objects to these items in compensation as not liquid or easily liquidated, and as arising out of transactions in partnership between defendant and the deceased. As to the item of $111.25, the Court is with the defendant. There appear here to be items of account between the two which cannot be or can with difficulty be settled in this cause. As to the other items they are rightly offered in compen There are judges not a hundred miles from this Province who would have filled ten to fifteen pages of printed matter in either of these cases. We have already expressed the opinion that the longest judgments are gene-sation. rally the most useless. Every day we see illustrations. The Privy Council disposes of the most complicated cases in a few pages; division and county court judges struggle with the most simple case in a manner which suggests the remark that they are suffering from diarrhoea.... of words! NOTES OF CASES. SUPERIOR COURT. MONTREAL, March 29, 1884. Before TORRANCE, J. MARTIN V. DANSEREAU. Compensation-Universal legatee-Doctor's bill. 1. An indebtedness arising out of alleged joint transactions between the defendant and a deceased person, cannot be pleaded in compensation to an action by the universal legatee of the latter for a prix de vente. 2. But (a) monies paid out by defendant for deceased; (b) monies received by the deceased to the use of defendant, and (c) the amount of a bill for professional services ren 28 Demolombe, No. 525, mentions this very case of a doctor's bill under C. C. (Nap.) 1291, and cites in support the Cour de Cassation; vide T. Gen. vo. Compensation, 5. Médecin. Apart from these four items, the plea begins by pleading a tender of $31.35 to the plaintiff, with claim of indebtedness by the deceased to defendant of $364.77, without particularizing the cause of indebtedness and without invoking this indebtedness in answer to the demand. The Court regards this alleged tender as an excrescence which should be struck out of the plea, being there irregularly and to no purpose. The judgment strikes it out, as also the item of $111.25, and allows to stand the other three items. Archambault & St. Louis for plaintiff. SUPERIOR COURT. MONTREAL, March 14, 1884. Before DOHERTY, J. WEINROBE V. SOLOMON. Saisie-arrêt before judgment—Petition to quash. dered by the defendant as medical attendant | An affidavit alleging that the defendant “has to the deceased, may be pleaded in compensation to an action of the nature mentioned above. This was the merits of an answer in law to a plea of compensation. The action was to recover the sum of $398.89, amount of a price secreted" his property, or has absconded," without indicating any time when such secretion or absconding has taken place, is insufficient, and does not comply with article 834, C. C. P. The affidavit in this case alleged a personal indebtedness of $140 for money lent in December last; and the second and third paragraphs of the affidavit were as follows: "That the defendant has secreted and "made away with his property and effects "with intent to defraud the plaintiff in par"ticular. "That the defendant has also absconded "from the Province of Quebec and gone to "reside in the United States of America, with "intent to defraud the said plaintiff in par"ticular." The defendant's petition set up, among other grounds, that the affidavit was insufficient in law, because the words " has secreted" and "has absconded," without specifying any time, were too indefinite and might mean a secreting and an absconding committed twenty years before the debt sued for was contracted; and, moreover, that these words were not a compliance with the requirements of article 834 C. C. P., which provided for an affidavit establishing that the defendant is absconding or about immeditaely to leave the province, or is secreting or about immediately to secrete his property. DOHERTY, J. The affidavit being insufficient in law, and particularly so in the second and third paragraphs referring to secretion and absconding, the conclusions of the defendant's petition are granted; the attachment is therefore quashed and main-levée granted to the defendant of the seizure of goods made thereunder, with costs against the plaintiff. The plaintiff sued the defendants for $174, his charges, as a carrier, for removing and packing furniture and goods in a house occupied by Mrs. Sylvia Smythe, one of the defendants: the plaintiff, while performing the work, being compelled to give up possession of the goods, by guardians appointed under certain executions issued against Mrs. Smythe and opposed by the other defendant, Pomeroy. On the strength of his lien over the goods the plaintiff accompanied his action with a saisie-arrêt conservatoire, which the defendants now attacked by petition to quash, upon the grounds (inter alia), that the plaintiff had not complied with the requirements of the articles of the Code of Procedure relating to seizures before judgment, and further that the plaintiff had no lien on the goods, and even if he ever had such a lien he had relinquished it by giving up possession. The plaintiff answered that a petition to quash only applied to the special cases of seizure before judgment provided for by the Code, and that a saisie-arrêt conservatoire must be met by ordinary pleading; and cited, among other cases, Trudel v. Trahan et al., 7 Revue Légale, p. 177 (1874). DOHERTY, J. This seizure being a saisiearrêt conservatoire, it is not the subject of nor attackable by a petition to quash: and an affidavit such as is required by the Code in matters of saisie-arrêt before judgment not being required to support the common law conservatory process taken in this case, the defendant's petition to quash is dismissed Macmaster, Hutchinson & Weir for the with costs. plaintiff. James Crankshaw for the defendant. (J. C.) SUPERIOR COURT. MONTREAL, March 14, 1884. Before DOHERTY, J. BURNETT V. POMEROY et al. Saisie-arrêt Conservatoire-Petition to quash. An affidavit such as is required by the Code for a saisie-arrêt before judgment, is not necessary for a saisie-arrêt conservatoire, which is a common law process, and cannot be attacked by petition to quash. James Crankshaw for the plaintiff. Quinn & Weir for defendants. (J. C.) COURT OF REVIEW. MONTREAL, Jan. 31, 1884. Before JOHNSON, JETTÉ & LORANGER, JJ. SANCER V. GIRARD. Tender as to one branch of demand-Costs. The inscription was by the defendant on a judgment of the Superior Court, Montreal, Doherty, J., Oct. 13, 1883. |