Canada shall be entitled to the "remedy provided, unless he has a legal claim, such as could have been enforced by petition of right in England prior to the Imperial Act of the 23rd and 24th Victoria. It is impos. bar who, by law and practice, is permitted to sue for his fees, when he seeks his remedy against the Crown, under the Canadian Act of 1876, has no such legal claim, and that he sues under circumstances similar to those in which an English barrister is placed who, neither by the usage of his profession nor the law of his domicile, can maintain any action for his fees. Their lordships will, therefore, humbly advise Her Majesty to affirm the judgment of the courts below, and to dismiss the appeal, with costs. Judgment affirmed. The Solicitor General and Mr. Jeune for the Crown. Mr. McLeod Fullarton for the respondent. SUPERIOR COURT. MONTREAL, July 30, 1884. judgment on the 13th of May, 1882. Chief Justice Ritchie and Justices Strong and Gwynne were in favour of allowing the appeal, but Mr. Justice Fournier, who was a member of the Full Court, adhered to the view which he had taken as judge of first in-sible to hold that a member of the Quebec stance, and Justices Henry and Taschereau, in substance,agreed with him. In consequence of this equal division of opinion in the Supreme Court, the order appealed from was confirmed, and the appeal dismissed, with costs. Their lordships do not consider it necessary to notice the great variety of reasons assigned by the learned judges of the Supreme Court in support of the views which were severally adopted by them, with the exception of one point raised in the judgment of Mr. Justice Gwynne. That point is deserving of notice for this reason-that if the opinion of the learned judge, which is based on the provisions of the Petition of Right Act of Canada, be well founded, the respondent, though he might have suit for recovery of his fees from any subject, could not recover them, by petition, from the Crown. By a pardonable error, Mr. Justice Gwynne refers to the Act of 1875, instead of the Petition of Right Canada Act, 1876 (39 Vict., c. 27), which repealed the statute of the previous year. Section 19, which is identical, in expression, with the similar circumstances of the repealed act, provides "that nothing contained in this act shall give to the subject any remedy against the crown in any case in which he would not have been entitled to such remedy in England, under similar cir- | cumstances, by the laws in force there prior to the passing of the imperial statute 23 and 24 Vict., c. 34." The learned judge seems to hold that these provisions place a Quebec lawyer on perfectly the same footing as an English barrister, so far as regards his right to proceed against the Crown for recovery of his fees. But it appears to their lordships that the process of reasoning by which the learned judge arrives at that conclusion confounds two things which are essentially different "right" and "remedy." The statute does not say that a Quebec lawyer shall, in all cases, have only the same right against the Crown as a member of the English bar. What it does enact is that no subject in [In Chambers.] Before TORRANCE, J. MCLEAN, Petitioner, and PHILLIPS et al., Costs-Petition for appointment of sequestrator. Ritchie, supporting the taxation, cited Wotherspoon, C. C. P., p. 321, 2, and 3 Legal News, p. 358; 17 L. C. Jur, 69. Benjamin è contra. TORRANCE, J. The taxing officer appears to have been guided by the rules laid down for actions not specially provided for; p. 321 of Wotherspoon. I am inclined to place the taxation of the present proceeding under No. 83 p. 329 of Wotherspoon. It provides for fees to obtain Benjamin for petitioner. COURT OF QUEEN'S BENCH. DISTRICT OF TERREBONNE, July, 1884. THB QUEEN v. GRANGER. Criminal Procedure—Indictment for Perjury. Held, that where the preliminary formalities required by sec. 28, 32-33 Vict. c. 29, concerning criminal procedure, have not been complied with, an indictment for perjury | will be quashed if it has not been preferred by the direction in writing of the AttorneyGeneral himself. In this case the indictment was signed "L. O. Taillon, atty-general, by Chs. de Montigny, Crown prosecutor." The defendant moved to quash the indict- that where a prisoner is convicted of a sec- LORD COLERIDGE'S VISIT. A statement having been made public, that Chief Justice Coleridge was writing a book about America, his lordship writes to the Albany Law Journal to say that there is not Arthur Globensky (of Globensky & Poirier) the slightest foundation for the report. He for defendant. says: "My visit was too short, too hurried, too pleasant in all ways, to give me any real insight into your wonderful country. There must be by-ways I never saw, unscrupulous people I never met; and if I were foolish enough to try to generalize from such very imperfect materials, I have not the power to do so with effect. I cannot knock off a dissertation on a great country of infinitely complicated elements, and endless variety of social aspects, in half an hour. The incorri CUMULATIVE SENTENCES. The Supreme Court of Michigan recently passed upon the question of cumulative sentences in Bloom's Case, 19 N. W. Rep. 200. In that case a prisoner, convicted for two separate offences, was sentenced to serve three months for the first, from January 25 to April 24, and for a like term for the second offence, from and after April 24, unless the first term should expire before that time, ingible vanity of such a proceeding would be in which case the second should begin at the termination of the first. The court held that the second sentence was void, because a sentence to confinement, to take effect in the future, cannot be sustained unless plain and free from contingencies. This does not seem to be in accord with the current of authorities. See Desty's Crim. L. (Pony Series), p. 130. It has heretofore been held laughable if it were not sometimes so very mischievous. No; I must be content with the very pleasant memories of my ten weeks' American vision, during all of which I never heard an unkind word, or met an unfriendly person, and which will always warm my heart when I think of it, till it is chilled forever by that which cannot now be very far away." GENERAL NOTES. The death is recorded, July 23, of the Right Hon. Sir Lawrence Peel, aged 84. The deceased, who was a cousin of the late Sir Robert Peel, was born in 1799. After filling the post of Advocate General at Calcutta he was raised to the Chief Justiceship of the Supreme Court in 1842, and retired in 1855. In 1871 he was appointed a member of the Judicial Committee of the Privy Council. The death of Sir Watkin Williams, a judge of the Court of Queen's Bench, is reported by cable July 18. The deceased was born in Llansannan, Wales, in 1828, his father being rector of that place. He first studied for the medical profession, but abandoned it for the bar. He was made a Q.C. in 1873, and was M.P. for Denbigh (liberal) for several years, and in 1880 was appointed a justice of the Queen's Bench division of the Supreme Court of Judicature. 66 What is a kiss?" asks the Pall Mall Gazette. The question can only be answered by experience; solvitur osculando. But it is easy after a decision in the Lambeth County court yesterday to say what a kiss is not. It is not legal consideration.' A surgeon in Lambeth kissed a workingman's wife; the husband valued the kiss at five pounds, and the surgeon gave an IOU for that amount. A month after date an action was brought on this document, but the judge promptly ruled there was no consideration and gave a verdict for the defendant. Perhaps the lady was in court, and the judge may have been influenced by that. For even the poets admit that there are kisses and kisses! The interesting question is whether yesterday's judgment was meant to lay down a general principle, or whether every case must be decided on its merits." The Supreme Court of Louisiana lately upheld a verdict in trespass for $700, rendered against a furniture dealer for unlawfully retaking furniture upon failure to pay for it. Say the court: "The unlawful invasion of the pauper's hovel, and abstraction of its scanty possessions is an injury identical in character and magnitude with the like entry of a palace and the despoiling it of its gorgeous apparel."- Ohio Law Journal. The Supreme Court of Georgia has affirmed a lower court judgment on a verdict of guilty of circulating an indecent pictorial newspaper known as the National Police Gazette, in Montross v. State, 17 Rep. 783. It seems that the defendant violated the law for the express purpose of making a test case, that he was anxious to vindicate the charges brought against it, and with that view and that he might not fail in his object, he sought the chief of police and bestowed on him copies of his paper. The defendant succeeded apparently beyond his own expectations, for he was sentenced to pay a fine of $1000, or, in default, to labor for one year on the public works.-Weekly Law Bulletin, (Columbus, O.) The retrospective clause in the French Divorce Act will probably have the effect of keeping lawyers and the law courts busy for some time to come. Couples legally separated for upwards of three years will be entitled to demand a divorce at once, and the application may be made by either the plaintiff or the defendant in the separation suit. The court will, however, have to review the evidence given in the earlier proceedings, and if the facts should seem not to be of sufficiently grave a nature to warrant a divorce it will be withheld. Such cases will, however, it is believed, prove to be exceedingly rare; separations being rarely asked for or granted on grounds which would not warrant a divorce under the act. It is estimated that not fewer than five or six thousand applications will be made under the retrospective clause.-St. James Ga zette. The New York Times shows that there are in the city of New York only 15,450 persons liable to jury duty. Of 5,646 members of the produce, cotton, stock and petroleum exchanges less than five per cent. are liable. Seventy thousand escape by not having the property qualification, thirty thousand by physical disability, and twenty thousand by military service. The Times remarks that "if jury service is to be handed over to the ignorant, the vicious and dissatisfied, the day will soon come when other cities will be taught the lesson which Cincinnati has learned." That a holiday is a necessity and not merely a luxury, is a fact, which, says the British Medical Journal, it especially behooves members of our hardworking profession to remember in the regulation of their own lives as well as in their dealings with their patients. For the brain-worker, periodical remission of accustomed toil has always been a necessary condition of continued vigor. For him the heightened tension of modern life has especially accentuated the need for occasional periods devoted to the recreation and reaccumulation of energy. The cogent physiological principles and practical purposes of systematic holidays are generally admitted. All workers, if they are to last, must have holidays. For some persons and for some occupations frequent short holidays are the best; with other natures and in other circumstances only comparatively long periods of release from routine are of service. Few real workers, if any, can safely continue to deny themselves at least a yearly holiday. Mere rest, that is, mere cessation from work, while it is better than unbroken toil, does not recreate the fairly vigorous so thoroughly as does a complete change of activity from accustomed channels. For the strong worker, either with brain or muscle, diversion of activity recreates better than rest alone. The whole body feeds as it works, and grows as it feeds. Rest may check expenditure of force, but it is chiefly by expending energy that the stores of energy can be replenished. We mostly need holidays because our ordinary daily life tends to sink into a narrow groove of routine exertion, working and wearing some part of our organism disproportionately, so that its powers of work and its faculty of recuperation are alike worn down. In a well-arranged holiday we do not cease from activity, we only change its channels. With such change we give a new and saving stimulus to assimilation and the transmutation of its products into force. As a rule, the hardest workers live longest, but only those live long who sufficiently break their wonted toil by the recreating variety of well-timed and well-spent holidays. The Legal News. VOL. VII. AUGUST 9, 1884. No. 32. no longer act as a Commissioner, and withdrew. Mr. Robidoux, another member of the Commission, then said that the withdrawal of Mr. Joly broke up the Commission, and he also declined to sit. The question was whether the remaining Commissioners JUDICIAL CHANGES IN ENGLAND. had authority to proceed. They decided in The vacancy in the Queen's Bench Division the affirmative, and the reasons are given at caused by the death of Mr. Justice Williams; length on another page. The decision seems noticed on p. 248, has been filled by the to be almost a dictate of necessity, for otherappointment of Mr. Alfred Wills, Q.C., a wise it is apparent that a Commission at the counsel who has been engaged in several last moment might be rendered futile by the cases from this city before the Judicial Com-withdrawal of a member who desired to premittee of the Privy Council. The Law Journal vent a report. remarks: “The appointment is accepted on all hands as an admirable choice, the only criticism being that it would have been better if Mr. Wills had been chosen at a date nearer the time when he was President of the Alpine Club." The new Judge was born in 1828, his father being a Birmingham solicitor. He was called to the bar in 1851, obtained 'silk' in 1872, and has held the recordership of Sheffield since 1880. THE MOUSSEAU INQUIRY. THE BOUNDARY QUESTION. character. JUDICIAL CRITICS. The boundary question has been argued during several days before the Judicial Committee of the Privy Council. The Hon. O. Mowat and Mr. Scoble, Q. C., addressed the Committee for Ontario, and Messrs. D. McCarthy, Q. C., and Christopher Robinson, Q. C., for the Dominion and Manitoba. At an early stage of the proceedings the award of the Canadian arbitrators was declared to be ultra vires, and the arguments were then A question of some interest has arisen in directed to the question of the boundary the course of the investigation into the between Ontario and Manitoba. At the concharge made against Mr. Justice Mousseau, | clusion of the arguments the Lord Chanceland we reproduce the ruling of the Commis- lor said the Committee would make a report sion in our present issue. The circumstances to Her Majesty, as usual in cases of this were these. Mr. Mousseau was Premier of the Province of Quebec at the time when tenders were received for the construction of new legislative buildings. He has since been appointed a Judge of the Superior Court of the Province. During the last session of the Provincial Legislature, Mr. Mercier, leader of the opposition in the Legislative Assembly, preferred a formal charge that Mr. Mousseau while Premier had sold the contract to Mr. Charlebois for a consideration. A committee was appointed to investigate the matter, but as the session was drawing to a close, the members of the committee were appointed a Commission to sit during the recess. The Commission proceeded with their task, and in the course of the examination of witnesses, Mr. Joly, one of the Commissioners, being overruled by a majority of the Commission as to the admissibility of a question which he desired to put to a witness, declared he would We have quoted on page 233 the observations of Mr. Justice Manisty on the changes effected by the Judicature Acts. Another criticism worthy of notice is that of Sir Laurence Peel, a member of the Judicial Committee of the Privy Council, who died July 22. The deceased judge was fond of writing to the Times, and just before his death he penned a letter on Law Reform, from which the following is an extract : What with abortive trials, retrials decies repetitæ, motions and appeals, the Nisi Prius Court should have inscribed over it the inscription Dante gives to his Hell. Causes for defamation have largely multiplied, and people are as tenacious of their rights and wrongs as a lady of doubtful virtue. No check whatever is interposed. Let us profit by Belt v. Lawes We have acted in law reform as a foolish householder acts in a snowstorm, who clears the snow away before his door and leaves an alp of snow on his roof. We have amended practice, pleadings and evidence, and the trial is worse than ever. In our desire to root out errors we aim at the impossible. A certain degree of it is inevitable, and the invalid who is also against taking medicine, dies none the later, and has a nauseous life of it. What, then, must we do? What am I that I should advise all our mighty men? I merely tell them they are dancing in a net." There is a slight incoherence apparent in this effusion, but it is to be remarked that the writer had attained the ripe old age of 85. NOTES OF CASES. SUPERIOR COURT. MONTREAL, July 14, 1884. [In Chambers.] Before PAPINEAU, J. ROSE et al. v. TANSEY, and THE CITY OF MONTREAL, mise en cause. Charter of City of Montreal-Contestation of election of Alderman-Procedure-Rights of Defendant. The defendant whose election as alderman for a ward in the City of Montreal is sought to be annulled, has a right to allege and prove that illegal votes were cast for the other candidate, and to claim a scrutiny, and to show that said candidate was guilty of acts which render him ineligible, even where the seat is not claimed for such candidate and he is not a party to the cause. The petitioners complained of the return of the defendant, Denis Tansey, as the candidate elected by a majority of votes at an election of alderman for St. Ann's Ward in the City of Montreal, held on the 1st of March last, and they prayed that the election be set aside. The defendant, among other pleas, alleged that he was elected by a large majority of the "votes legally cast in the election; that apart from the legal majority declared in his favor, there were cast against him a large number of illegal votes which should be struck off the list, and which being struck off, would leave the majority declared for the defendant not only intact but would increase it; and that the defendant was entitled to a scrutiny. He also alleged that the defeated candidate, Malone, personally and by his agents, had been guilty of acts of corruption. The petitioners answered in law to this plea: "1. Parce que les allégués de ce plaidoyer ne peuvent affecter la présente contestation; 2. Parce que le siège n'est pas récla mé par le dit Moses Malone; 3. Parce qu'en conséquence les actes de corruption que lui et ses agents ont pu commettre ne peuvent en aucune manière changer les conclusions de la requête libellée." The defendant cited the Taunton case, 0. & H. 187; South-West Riding case, O. & H. 215. The following judgment was rendered by the learned Judge : "Après avoir entendu les requérants et le défendeur par leurs avocats respectifs sur la réponse en droit des requérants à la troisième défense du défendeur, et sur la requête des dits requérants, produite le 18 avril 1884, pour faire rejeter la dite troisième défense; avoir examiné la procédure et délibéré ; "Considérant que la procédure indiquée dans la charte de la cité de Montréal (37 Vict., chap. 51, sect. 25), est de la nature d'un Quo Warranto et diffère notablement de la procédure établie par les lois pour la contestation des élections pour la chambre des Communes du Canada et pour la contestation des élections pour l'Assemblée législative dans la province de Québec; et que le défendeur est requis, dans la présente instance, de faire voir en vertu de quelle autorité il prétend avoir droit d'exercer la charge d'échevin de la cité de Montréal; "Considérant que par la même charte (section 42) certains actes y mentionnés sont déclarés être des actes de corruption, et que ceux qui sont convaincus de s'être rendus coupables de tels actes sont privés pour toujours du droit de voter à aucune élection mu nicipale dans la dite cité, ou d'être élu maire ou échevin de la dite cité pendant trois annés (sect. 43), et que tous les votes enregis trés en violation des dispositions susdites seront considérés comme nuls et de nul effet; |