his own wrongful detention of goods not belonging to the insolvent after a demand made for them upon him by the true owner, from whom they had been taken. Such wrongful detention cannot be justified by the assertion that the sheriff, who had wrongfully seized the goods, had given them to the assignee. If the goods were now in the hands of the sheriff, he, to set himself right with the true owner, and to protect himself from an action, might unhesitatingly restore the goods to the owner. When the official assignee, to whom he has delivered them (upon demand being made upon him by the true owner), refuses to restore them, he becomes a wrong-doer himself, wholly independently of the sheriff and of the wrong committed by him, and must be responsible for his own acts.

The affidavits and argument upon the appeals leave no doubt on my mind that these are cases in which I have a discretion enabling me to grant writs of replevin, and that I properly exercise that discretion by granting them, which I therefore do without further delay, to enable the official assignee, if so advised, to have my judgment reviewed by the court during the present Term; and as the Act of 1860 enables me to direct that a bond may be taken in less than treble the amount of the property. I think it proper to limit the amount to a sum not exceeding four thousand dollars in each case. orders of Mr. Dalton will therefore be set aside, and the orders will go for the writs of replevin.

DIVISION COURTS.

The

In the Third Division Court in the County of Elgin,

OAKES V. MORGAN. Nonsuit after payment of money into Court-Div. Ct. Rule 130-Impounding money for defendant's costs.

[St. Thomas, Aug. 19, 1872.-Hughes, Co. J.] This was an action to recover an account claimed for work and labour. At the trial the plaintiff proved a special executory contract to serve defendant for a fixed period not performed on his part, but sought to recover as upon a quantum valebat for the time he had worked as plaintiff's hired servant. The defendant paid a specific sum into Court, less than plaintiff's claim. The plaintiff was, on his own evidence, nonsuited at the trial because he proved he had failed to perform his contract.

After the sitting, E. Horton (who acted as counsel at the trial) applied for an order to set aside the nonsuit, and for a new trial on the following grounds :

1st. That the payment by the defendant into Court was an admission that defendant was indebted to the plaintiff in at least that sum.

2nd. That the ordering a nonsuit when money had been paid into Court was unjust and unprecedented.

3rd. That the plaintiff was and is entitled under the circumstances to the amount paid into Court, and acknowledged to be due from defendant to him.

W. J. White, attorney for defendant, shewed cause, and cited the several authorities hereinafter referred to, contending that the nonsuit was right, and that the money paid into Court could not be taken out by the plaintiff, as the practice of a court of record permits, because the 130th General Rule of 1869 provides against that practice; that it is in fact to be retained by the clerk until the final result of the cause; that it may be impounded to abide the order of the judge who may order it to be applied in discharge of defendant's costs.

No one appeared to support the application. HUGHES, CO. J., delivered the following judg

ment:

The payment into Court was an admission that the defendant owed the plaintiff $8 and no more. The plaintiff proceeded with his claim for, and undertook to prove his right to recover more, in fact the whole of his demand, and would not accept the $8 in full; he, however, proved at the trial he was not entitled to any sum whatever.

After payment of money into Court there may be a nonsuit in a court of record, and that this is sustained by precedent, there is abundance of authorities, if authorities are required. Gutteridge v. Smith was the leading case on the subject, 2 H Bl. 374; 2 Esp. 482, n. It was formerly held that after tender, plaintiff could not be nonsuited, but it is now settled that plaintiff may be nonsuited after a plea of tender: Anderson v. Shaw, 3 Bing. 290. The 69th section of the Division Courts Act applies the principles of practice of the Superior Courts to the Division Courts in cases not otherwise provided for. The 130th Division Court Rule of 1869, makes the practice different with regard to plaintiff's right to take the money out of a Division Court, from that which is the practice in the Courts of Record. The rule provides that it is not to be paid out to the plaintiff until the final determination of the suit, unless the judge shall otherwise order; the object of that rule is quite obvious; so that the grounds stated for setting aside the nonsuit herein are untenable. Besides this, I do not see how I could be expected to grant a new trial, when upon the plaintiff's own shewing the merits of the case are entirely against his right to recover any sum whatever; the application ought rather to have been for me to grant an order for the clerk to pay over (after deducting defendant's costs) the balance of the amount paid into Court, to the plaintiff.

The authority shewn by Mr. White, 2 Chit. Arch. Pr. (9 ed.) 1283, lays it down that the Court or a Judge, may, if the plaintiff fails in his action, and the money has not been taken out of Court by him, impound it to answer the defendant's costs.

I shall, therefore, order the application for a new trial to be discharged and the money paid into Court to be impounded to pay the defendant's costs; and after those costs are satisfied the balance to be paid to the plaintiff.

remark incidentally, that I look to the Bar of Manitoba for their aid in the discharge of my duties. The esprit de corps, inseparable from over twenty-one years at the Bar, will naturally lead me to respect and uphold the privileges of the Bar, though I will be ready, at all times, while treating the Bar with all courtesy, to uphold the dignity of the Bench; and I therefore look for the most kind relations as likely to prevail between the Bench and the Bar."

After alluding to the recent disturbances there, when certain printing offices were attacked by a mob, and much property destroyed, he continued:

"If Manitoba is to be prosperous, there must be peace and order, there must be confidence in the administration of the laws, and there must be a fearless execution of these laws against all offenders, be they whom they may. I trust that, henceforth, British subjects in this Province will remember that free men are freest when they yield a ready obedience to the law; and that men of all classes in the land will resolve to work out the destiny of the Province, by the use of the free institutions of the country, without resort to acts of violence, which only bring disgrace on those who commit them, and discredit on the fair fame of the British Empire."

The following effusion is too good to be lost. It must have struck the recipient with profound awe, not to say terror. Whether it had the desired effect we know not, but are informed that this effort of the worthy J. P. was too much for hiin, for the gentleman who sent us the document quaintly remarks, 66 You will not be surprised to learn that he has since died." The paper reads as follows, except that we disguise the names:—

"Province of Canada, "Counties of Huron and Bruce,

"TO WITT:

Thomas W. Smith, of the Township of McKillop maketh oath before the undersigned one of Her Majesty's Justices of the Peace in and for the said Counties for that Mr. Brown also of McKillop unlawfully holds two ewes the property of said Complant I advise you on receipt of this note to return said sheep to Thomas W. Smith save costs & verry much oblige "Respectfully yours,

"PETER SMITH J.P. (Seal.)"

We would suggest that Mr. Anderson should be instructed by the Benchers to ask students at next interim examination to define the nature of, and give the technical name to the above document.

The judges of the American Republic are manifestly girding up their loins against municipal and magisterial corruption. Finletter, J. in the Court of Quarter Sessions of Philadel phia, upon a prosecution for taking extortionate fees by a Justice of the Peace, commences his judgment after this fashion : "Complaints of the rapacity of the local magistracy have come down to us continuously from the earli est periods. Its history is written in the statutes which were vainly intended to punish and suppress it. Its portraiture is found in the current literature of the times. 'Shallow' and 'Dogberry' and the justices of Fielding, himself a magistrate, are photographs of living actors of the past and present. The common law abhorred it; and its condemnation is dotted all along the highway of judicial decision in indignant language."

One of the most astounding pieces of judicial statistics which we have recently come across reaches us from the State of Illinois. It appears that the Supreme Court of that State has determined one hundred and thirtyeight appeals from inferior courts, and that the judgments in the eight have been upheld, and those in the one hundred and thirty reversed. Here, surely, is an intolerable amount of sack to a penny-worth of bread. We fancy suitors must be in a happy and contented frame of mind, when they ascertain that the court below has gone against them. Indeed, it seems to us that the judges below had better decide the cases by "skying a copper," because then, as somebody has remarked, "Heads might have something to do with the matter;" and, we might add, many a scandalous tail be saved.

MISPLACED ZEAL.

A case which is noted in another place shows how common is the belief that arbitrators are at liberty to act as though they were the paid advocates of the litigants that appoint them. It would scarcely seem necessary to quote the words of Mr. Vice-Chancellor Mowat in giving judgment in the case referred to. He says:

"It has over and over again been held, both in England and in this country, that it is illegal for an arbitrator to consider himself as the agent of the party who appoints him, or to hold any private conversation with him or with the witnesses on the subject of the matters in dispute; that an arbitrator is a judge, whose duty it is to be indif

ferent between the parties; and that any such course as took place here on the part of Mr. however innocent in intention, avoids the award." It was shown on the other side that the other party was just as bad; but two wrongs do not make a right, and so the excuse was of no avail. On this part of the subject an English judge has remarked:

"This is not a matter of mere private consideration between two adverse parties, but a matter concerning the due administration of justice, in which all persons who may ever chance to be litigant, in courts of justice or before arbitrators, have the strongest interest in maintaining that the principles of justice shall be carefully adhered to in every case."

If the arbitrators in this case had been ignorant men, living in the backwoods, there would have been some excuse for them; but the strange part was, that one was a druggist in a large way of business, and had been for years a city alderman; and the other a broker, a business man for nearer a half than a quarter of a century. The umpire-also an alderman -seemed not to know much more of the judicial nature of his office than the arbitrators. Of course no harm was intended, and perhaps none was done; but that was very properly not considered as an excuse, and the parties had doubtless had to pay a good bill of costs as the result of the zeal of their friends.

RESIGNATION OF VICE-CHANCELLOR MOWAT.

Our readers cannot but be aware that the senior Vice-Chancellor has resigned his seat on the Bench to take the position of AttorneyGeneral for Ontario, in the place of Hon. Adam Crooks, and to become Premier of the Government of Ontario, instead of Hon. Edward lake.

The "decline and fall" of the Hon. Oliver

Mowat is an episode in the nature of historymaking, that would form sufficient subjectmatter for a Canadian Gibbon to produce a book of no small interest or importance. We do not propose, however, to encroach on the general ground; nor on grounds better adapted for discussion in a political paper, but simply to notice the aspects which the facts present from the stand-points of the judiciary and the profession.

Whatever view the outside world may take of the matter, it will not prevent strong expressions of opinion from astonished law

yers and more guarded utterances from surprised judges, at the untoward event which at once has lost to the Court a learned brother, and found for the profession a co-labourer in the common ranks. A rude shock has been given to the stability of the judicial position, which the judge himself ought to have been the last to have occasioned. It is not the, fact simply that a judge has for good cause, or for no assigned cause, retired, directly and promptly, from the bench, as that he might have done, and as has been done before with dignity and honour, both maintained and perpetuated; the trouble is that a descent like this is not a retirement, nor even an abandonment; but has the appearance of a fall, by reason of an improper pressure that should not have been tolerated by the custodian of an office so sacred and so important. The decline is what gives impetus and force to the fall. The lever that gave to the bench the descending inclination is one of the objectionable features in the movement, and the facts point too pointedly to an inclination in the direction of the fall not to believe in its existence. We do not say that a judge is bound to continue on the Bench at the sacrifice of his health, or of an increased income, (though this has been done time and oft by judges jealous of the traditions of their order); but there is a glaring impropriety in this step, and in the precedent negotiations, which cannot but strike the most superficial observer; though, strange enough, it seems to have escaped the attention of the late learned Vice-Chancellor himself. For his own sake, we regret that it did so.

Individuals may or may not believe that a judge who leaves the bench for politics, at the request of the leader of a party with which he was formerly allied, has all along been an ardent politician. This, however, in itself, is no real grievance, so long as it does not interfere with, or in any way affect the judicial mind, as, for example, in the case of the Lord Chancellor in England; and, as far as Mr. Mowat is concerned, there has never been the slightest evidence of a tendency to fear, favor or affection. But whilst we are prepared to assert, and do assert this, as well of him as of all our judges, it is nevertheless a fact that the great mass of the people will certainly, begin to attribute improper motives to judgments, which to the profession may be most unassailable, and will look upon judges as politicians in disguise, when a judge leaves the Bench

directly and avowedly to go into politics, without any interval even to "give colour" to the change. What will be the confidence of the public in the trial of election petitions by judges, if the very judge who one day tries the case and unseats a sitting member, is the next day found leading a government to which the respondent was violently opposed. Better repeal that which was till now a most wise and proper enactment, and let the right to the seat be fought out by partisan committee men.

This view of the matter, if entertained generally, would introduce into the forum a bone of contention in addition to the "pound of flesh" usually in dispute by litigating Shylocks. Counsel would not only be bound to prepare himself for, and apply himself to the conviction of the mind judicial, but also to the mind political of the court. Those judges whose zeal for politics blinded their judicial discernment, would give greater attention to the political charlatan than to the counsel learned in the law. Desperate efforts would be made by suitors of a recognized political stripe to get their cases before the judge tinged with the hue of their party. In such cases political proclivities would lead to the selection of counsel adapted to the ear of the supposed partisan judge. In this way the worst features of political corruption would be transplanted from the lobby to the corridor; from the halls of legislation to the halls of justice. One of the objectionable characteristics of the American judicial system, as distinguished from the English, has in this instance been given the weight of a name heretofore regarded as eminently honorable and upright, both from a personal and judicial point of view. This every lover of his country will lament.

Respect for the law is intimately associated with respect for the law-giver or law-administrator. If law is administered by undignified persons, or by those suspected of partisan feelings, the popular mind at least will be prone to regard the law itself as unworthy and partial, and it will fall into general contempt. Loss of respect for the Bench at once weakens the whole framework of society, and woe betide any country whose judges have been subjected to even the breath of suspicion.

This frailty or weakness, it is to be feared, may be thought by the intensely interested public to be general or epidemical. It is deeply to be regretted-very much to be deplored, that the foundations of judicial

power have been weakened by the weakness of a weak brother. The remaining pillars of justice will have to be strengthened by some legislative or administrative application, that will prevent political barnacles from wasting away their firmness and stability.

The profession has been wont to admire the Bench as a place of permanent honor and practical usefulness. It will now be subject to the reproach of fickleness and temporizing utility. Many will look upon it as an elevated vantage-ground from which to scan the contending elements of faction, and from which the occupants are prepared to step down into the arena of conflict, when the prospects of extended patronage, or the gratification of a taste vitiated by the expectation of enlarged emoluments are in view.

The profound respect and traditional deference paid to the Court by the Profession would be perceptibly diminished in proportion to the probability that the judge might one day be "your lordship," and the next, "my learned friend;" one day an authority whose oracular dicta would be sustained by the whole civil and military forces of the Empire, and the next day a speaker whose utterances and arguments would be tattered and torn into shreds of illogical incoherencies by his opponents.

The profession, as such, has a special duty to perform between the Bench and the people, than which there is nothing more important for the due and impartial administration of the law. This duty is to maintain and promote before the public a becoming respect for the Court. This educates the popular mind as much or more than anything else. Where this is wanting, regard for the authority of the Court is wanting; and when once that is gone, the strongest element in obedience is destroyed, and insubordination and anarchy are necessary consequences.

We cannot but most seriously regret the resignation of Mr. Mowat, and his immediate acceptance of the position of a political party leader, and the undoubted necessity of accepting the position of practising at the Bar with those whom he formerly presided over as a judge.

We trust this experiment will not be repeated; that the present daring contempt of judicial traditions and judicious rules will not be accepted, or acted upon, as a precedent hereafter. We hope that the public opinion educed, and the professiona]