4. A Demurrer Book shall be left with the Clerk of the Crown and Pleas of the Court in which the cause is pending at the time of setting down the demurrers. (Signed),

WM. B. RICHARDS, C. J.
JOHN H. HAGARTY, C. J. C. P.
Jos. C. MORRISON, J.
ADAM WILSON, J.
JOHN W. GWYNNE, J.
THOMAS GALT, J.

CORRESPONDENCE.

Crown Counsel.

TO THE EDITOR OF THE CANADA LAW JOURNAL. It would scarcely seem necessary at this hour of the day to ask any questions as to the position of Crown counsel and the rules of professional ethics affecting them; but what I heard at the trial of a case at the last Toronto assizes shows a somewhat curious state of things to my mind, and suggests the inquiry: Is it etiquette for a lawyer who advises a private prosecutor, and has the conduct of his case, to appear on the trial of the indictment as Crown counsel and avowedly not as counsel for the private prosecutor?

The point came up recently on the trial of an indictment for libel of much general interest, the defendant being the manager of a newspaper company. It appeared, moreover, that the prosecutor commenced life as a shoemaker, whilst the defendant was said to be of good social position and of liberal education. The jury was a "common jury," and was, I presume, of the ordinary capacity.

In his closing speech the Crown officer referred at great length to the fact that the prosecutor was a poor man with five small children, whilst the defendant was a grandee," "nabob," "aristocratic blood," "fashionable blade," &c., and stated that this "grandee," &c., was endeavouring to crush a man who was trying to raise himself in the social scale-wish. ing to "send him back to his last." He concluded by reading from his brief a long list of eminent men who were of humble origin and of ignoble birth, drawing attention to the difference in social position between the prosecutor and the defendant, and thus having the probable effect (I presume a lawyer is supposed to

know that he is responsible for the result of his acts) of prejudicing the minds of the jury against the defendant, without regard to the evidence.

As a matter of taste such fomenting of class prejudices is not what I should have supposed an enlightened Bar would be proud of. But such a course on the part of the Crown counsel is not what I should have expected to witness in this country at this period of the nineteenth century.

I may mention that the learned gentleman asserted most strongly that he was acting for the Crown and not for the private prosecutor. I should be glad to know your view on these points, as they seem to me of interest to the profession. Yours truly,

COUNTRY PRACTITIONER.

[We have a horror of libels and politics and all such unpleasant public amusements, and should not have felt inclined to publish the above, but that it touches upon what is really a matter of great importance to the good name of the profession, viz.: that the counsel for the Crown should not go beyond the wellestablished and universally recognized line of conduct in conducting a prosecution. The theory is that the Crown is the protector of public rights, and stands between its subjects to see justice done. according to law. The duty of the Crown officer, who is the mouthpiece of the Crown, is to see that all proper evidence against a prisoner or defendant is fully and fairly laid before the jury, and also to see that the cause of the accused is not

jeopardized by improper evidence or prejudice. Whatever is "more than this cometh of evil," or arises from ignorance or want of temper. We should have thought that the safer plan to prevent any suspicion would be for a counsel who has acted for a private prosecutor to decline to act for the Crown in that particular matter.-EDS. L. J.]

FLOTSAM AND JETSAM.

A judge, rejoicing in the well-known legal name of Doe, has lately made his appearance on the New Hampshire Bench, and is astonishing the professional world by his exhaustive judgments. In a recent partnership case, his opinion was 284 pages in length. He must consume and digest a vast amount of case law.

A case was being tried before a presbytery not long ago, when the counsel for the defendant urged the plea of moral insanity. A venerable presbyter said: "Mr. Moderator, the disease of moral insanity seems to me to be identified with what the older theologians in their unscientific way called total depravity."

Many years ago, Robert Treat Paine (father of the poet,) was one of the judges of the Massachusetts Supreme Court. He was very old, and the Bar desired him to retire from the Bench, so they appointed Harrison Gray Otis, who was very polite and accomplished, to go and see the judge and talk with him on the subject. He suggested to the judge that it must be a very great inconvenience to him to leave home so often and so long.

"Do you see as well as you used to`?" "Yes, I can see with my glasses very well." "Can you hear as well as you used to?" (for it was notorious that he could not hear anything unless yelled through a trumpet.)

He said, "Yes, I hear perfectly; but they don't speak as loud as they did before the Revolution."

"It will appear rather surprising, if we recur to those principles of conscience and equity which seem to have been regarded with such favour, and enforced by the ecclesiastical judges whenever an occasion presented itself in opposition to the severer rules of the common law, that the penalty inserted in a bond should have so long escaped their animadversion, and that some expedient at least should not have been attempted in order to relieve an unfortunate obligor from the full amount of penalty, at once so absurd and so unjust. It serves, however, as a proof of the contradiction and inconsistency into which men are prone to fall, merely for the sake of maintaining some favourite theory or scholastic dogma; and, in order to avoid a principle at variance with their system, adopt an evil of tenfold magnitude. Thus, the monk. ish scholiasts appear, for a considerable period, enamoured with the Aristotelian notion that money is naturally barren, and to make it produce money is preposterous, and contrary to its original design. These writers also fancied that the taking of usury or interest for the loan of money was hostile to the spirit of Christianity, and therefore set their faces most resolutely against it. But it was very soon discovered that, unless mankind had no other inducements

to lend their money except the trouble and risk of recovering it, they would choose the safer course of keeping it in their own possession. The clerical judges, however, rather than sacrifice their theory, by fixing a moderate and unoppressive rate of interest upon borrowed capital, allowed the penalty in the bond (usually double of the sum borrowed) to be enforced against the miserable debtor, on default of pay. ing the principal at the time agreed upon; he was thus, by ecclesiastical foresight and the decisions of the judges, preserved indeed from splitting upon the Scylla of usury; but, at the same time, he not unfrequently became engulfed in the Charybdis of their own invention." -Goldsmith on Equity.

actors.

One great objection to localising business, and therefore scattering the Bar, is that judges would cease to be controlled by that great moral influence which undoubtedly is at present exercised by a centralized Bar. Nothing proves this more forcibly than scenes which occasionally take place in County Courts. The nature of the general run of County Court business is certainly calculated to have a very bad effect upon the temper of everyone concerned, and it would be deplorable if all our judges became a sort of superior order of County Court judges. To show the length to which irritation is sometimes—rarely we ought perhaps to say-carried in the inferior tribunals, we direct attention to a scene in which Mr Josiah Smith, Q. C., as Judge, and Mr Garrold as advocate, were the The action was brought to recover the value of a lamb, it being alleged that the defendant kept a lamb entrusted to him by the plaintiff, and substituted an inferior lamb. A question arising as to the probability of a ewe recognising its own lamb, the Judge inquired whether if a ewe were suffering from excess of milk it would not be rather glad to have any young lamb to relieve it? Witness replied in the negative, whereupon the Judge cited a case (not to be found in the books), of two cats of his own who were sworn foes until they both had kittens, whereupon in the absence of either the other took kindly to all the kittens. Mr Garrold, apparently feeling pressed by this case in point, abruptly observed: "We are talking of sheep, not cats." Subsequently the Judge referred to the two officers of the court as to the habit of ewes, and they (although not sworn) confirmed the witness; and, after hearing the defendant and his witnesses, the Judge said he considered the preponderance of evidence to be in favor of the plaintiff, and ordered the lamb in dispute to be given up. Thereupon Mr. Garrold threw the fee which the defendant had given him upon the table, saying that he declined to take a poor man's money with such

ruling from the Bench. It will be seen from the conversation which we report, that the advocate twitted the Judge with not knowing the law, with ruling ignorantly, and preventing as far as he could appeals against his decisions, and by his conduct driving the best advocates from the court. The learned Judge submitted to this abuse with a patience and forbearance simply astounding. He expressed a hope that Mr Garrold would apologise, to which the only reply was by Mr Garrold himself: "Oh, no, he won't. He is just telling the Registrar that he withdraws from all cases in which he was engaged in this court as an advocate." Looking to the small amount of provocation on the part of the Judge which produced this outburst, we can only conclude that the court is to be congratulated on Mr Garrold's announcement; but it reflects strangely on our County Court system that such a scene could possibly have thus ended without the law's representative having asserted his dignity more effectually than by a mild protest.—Law Times.

Two lawyers in a county court-one of whom had grey hair, and the other, though just as old a man as his learned friend, had hair which looked suspiciously black-had some altercation about a question of practice, on which the gentleman with dark hair remarked to his opponent. A person at your time of life, sir,"looking at the barrister's grey head-"ought to have acquired experience enough to know what is customary in such cases." "Yes, sir," was the rejoinder, "you may stare at my grey hair if you like. My hair will be grey as long as I live, and yours will be black as long as you dye."-Law Times.

November 9th.

1 BARRIE.

2 BERLIN

3 GUELPH 4 BRANTFORD

September 29th

5 SIMCOE.

October 5th

15th

20th

" 23rd

Monday.

Tuesday

Monday

WATERLOO CIRCUIT.

HON. MR. JUSTICE GALT.

. Tuesday

Thursday

Tuesday Thursday

Tuesday

WESTERN CIRCUIT.

HON. MR. JUSTICE GWYNNE:

1 ST. THOMAS.

2 SARNIA 3 SANDWICH

4 CHATHAM

WESTERN CIRCUIT.

THE HON. VICE-CHANCELLOR BLAKE.

5 LONDON

HON. MR. JUSTICE BURTON.

1 TORONTO (Oyer and Terminer
and General Gaol Delivery.)
2 TORONTO (Assize and Nisi
Prius.

Tuesday. Sept. 22nd Tuesday.

. Oct. 6th

Ordered, That the division of candidates for admission on the Books of the Society into three classes be abolished. That a graduatein the Faculty of Arts in any University in Her Majesty's Dominion, empowered to grant such degrees, shall be entitled to admission upon giving a Term's notice in accordance with the existing rules, and paying the prescribed fees, and presenting to Convocation his diploma or a proper certificate of his having received his degree.

That all other candidates for admission shall pass a satisfactory examination upon the following subjects: namely, (Latin) Horace, Odes, Book 3; Virgil, Eneid, Book 6; Cæsar, Commentaries, Books 5 and 6; Cicero, Pro Milone. (Mathematics) Arithmetic, Algebra to the and of Quadratic Equations; Euclid, Books 1, 2, and 3. Outlines of Modern Geography, History of England (W. Douglas Hamilton's) English Grammar and Composition.

That Articled Clerks shall pass a preliminary examination upon the following subjects:-Casar, Commentaries Books 5 and 6; Arithmetic; Euclid, Books 1, 2, and 3, Outlines of Modern Geography, History of England (W. Douglas Hamilton's) English Grammar and Composition, Elements of Book-keeping.

That the subjects and books for the first Intermediate Examination shall be :-Real Property, Williams; Equity, Smith's Manual; Common Law, Smith's Manual; Act respecting the Court of Chancery (C. S. U. C. c. 12), (C. S. U. S. caps. 42 and 44).

That the subjects and books for the second Intermediate Examination be as follows:-Real Property, Leith's Blackstone, Greenwood on the Practice of Conveyancing (chapters on Agreements, Sales, Purchases, Leases, Mortgages, and Wills); Equity, Snell's Treatise; Common Law, Broom's Common Law, C. S. U. C. c. 88, Statutes of Canada, 29 Vic. c. 28, Insolvency Act.

That the books for the final examination for studentsat-law shall be as follows:

1. For Call.-Blackstone Vol. i., Leake on Contracts, Watkins on Conveyancing, Story's Equity Jurisprudence, Stephen on Pleading, Lewis' Equity Pleading, Dart on Vendors and Purchasers, Taylor on Evidence, Byles on Bills, the Statute Law, the Pleadings and Practice of the Courts.

2. For Call with Honours, in addition to the preceding, -Russell on Crimes, Broom's Legal Maxims, Lindley on Partnership, Fisher on Mortgages, Benjamin on Sales, Jarman on Wills, Von Savigny's Private International Law (Guthrie's Edition), Maine's Ancient Law.

That the subjects for the final examination of Articled Clerks shall be as follows:-Leith's Blackstone, Watkins on Conveyancing (9th ed.), Smith's Mercantile Law, Story's Equity Jurisprudence, Leake on Contracts, the Statute Law, the Pleadings and Practice of the Courts.

Candidates for the final examinations are subject to reexamination on the subjects of the Intermediate Examinations. All other requisites for obtaining certificates of fitness and for call are continued.

That the Books for the Scholarship Examinations shall be as follows:

1st year.-Stephen's Blackstone, Vol. i., Stephen on Pleading, Williams on Personal Property, Griffith's Institutes of Equity, C. S. U. S. c. 12, C. S. Ü. C. c. 43.

2nd year. Williams on Real Property, Best on Evidence, Smith on Contracts, Snell's Treatise on Equity, the Registry Acts.

3rd year.-Real Property Statutes relating to Ontario, Stephen's Blackstone, Book V., Byles on Bills, Broom's Legal Maxims, Story's Equity Jurisprudence, Fisher on Mortgages, Vol. 1, and Vol. 2, chaps. 10, 11 and 12.

4th year. Smith's Real and Personal Property, Russell on Crimes, Common Law Pleading and Practice, Benjamin on Sales, Dart on Vendors and Purchasers, Lewis' Equity Pleading, Equity Pleading and Practice in this Province. That no one who has been admitted on the books of the Society as a Student shall be required to pass preliminary examination as an Articled Clerk.

J. HILLYARD CAMERON,
Treasurer

THE

Canada Law Journal.

Toronto, November, 1874.

It is stated that the Master of the Rolls and the Vice-Chancellors in England. have completed arrangements by which, after the long vacation, one judge will sit in Chambers once a week. The change is very satisfactory to the profession. It is in fact the adoption of a practice which has been for some time in force in this Province.

We have received from two different sources the first number of Election Court Reports for Nova Scotia, compiled by Benjamin Russell, Esq., Barrister and Clerk of the Court. We may have occasion to refer to them more at length hereafter. In the meantime we thank our friends for their courtesy. The want of head notes to the cases takes away much from the practical utility of these reports.

It is laid down by the Privy Council in Richer v. Tryer, 22 W. R., 849, that the judges' reasons for their decision in the Canadian Court of Appeal ought to be stated publicly at the hearing below, and should not be reserved to influence the decision of the Court of Appeal. In the case referred to, (which was an appeal from Quebec) it appeared that one of the judges below had communicated the reasons of his judgment to the agents of the respondent's counsel, but the Lords of the Council refused to look at notes so irregularly communicated. The recommendation of the Privy Council as to public delivery of judgments is one which should be specially noted and observed by all judicial officers and courts from whom an appeal lies to a higher forum.