64

self. In Taylor on Evidence, 1096, it is said that the 14 & 15 Vict. c. 99, which was intended to remove a doubt, has instead created one by the words Except as hereinafter is excepted" in section 2. [BRAMWELL, B.-My brother, Cleasby B. suggests that that exception points to section 4. Is not the rule of construction, that where the Crown is not referred to in Acts of Parliament they do not apply to the Crown, for the Crown is the prosecutor? COCKBURN, C. J.-The words, "other proceeding," in the statute must be construed as ejusdem generis with the words preceding "suit, action," and would mean other civil proceeding. The exception in the proviso was introduced (probably in committee). ex abundanti cautelâ, and was not intended to enlarge the enactment.] The words of sect. 2 are, any "suit action or other proceeding in any court of justice, or before any person," &c.; and then, sect. 3 goes beyond civil proceedings. The learned counsel then referred to 1 Rus. on Crimes 625. In Reg. v. Smith 1 Mood, C. C. 289, the wife of one prisoner was held inadmissable to prove an alibi for another prisoner with whom her husband was jointly indicted, on the ground that by shaking the evidence of a witness who had identified both prisoners, she would weaken the case against her husband. But in Reg. v. Moore, 1 Cox. C. C. 59, Maule, J. said, of course a wife could not be examined for her husband, but for another prisoner jointly indicted with him for a burglary she might, and admitted her as a witness. Wightman, J. so held in Reg. v. Bartlett 1 Cox C. C. 105. The modern legislation encourages the calling of witnesses for prisoners; and to facilitate this the 30 & 31 Vict. c. 35, s. 3, provides for their being bound over, and sect. 5 for the allowance of their expenses. It would be a dangerous rule to exclude co-prisoners as witnesses, as evidence might be shut out by vindictive persons procuring their committal as accomplices. [COCKBURN, C. J.-This danger may be obviated by asking permission to have the prisoners tried separately; and then there would be no objection to calling one prisoner as a witness for another with whom he was jointly indicted] It ought to be a matter of right for a prisoner to be enabled to call a joint co-prisoner as a witness. The giving of the prisoners in charge ought not to raise any difficulty, for the issue is joined when the prisoners plead: Reg. v. Winsor, 35 L J. 121, M. C.; 10 Cox C. C. 276. [BLACKBURN, J.-The material thing is when the prisoners are given in charge to a jury who are to say whether they are guilty or not guilty. They are the persons who are to determine the issue as well as to hear the evider.ce.

And

If one prisoner is admissible for another, he must also be admissible against him. The competency of one prisoner as a witness for another is one thing-the privilege not to answer questions tending to criminate himself is another. The refusal to answer only goes to the credit of the witness. Taylor on Evidence, 627 (note), and Reg v. Jackson and Cracknell 6 Cox C. C. 525, were then referred to.

Streeten Jelf with him) for the prosecution.The witness was properly rejected. In Hawksworth v. Showler, 12 M. & W. 47. Lord Abinger says: "Nothing is clearer than this, that a person cannot be a witness who is a party to the

And

record, and affected by the determination of the issue, and that the wife of such a person is equally incapable of being a witness." Alderson, B., said, "The rule is, that a party upon the record against whom the jury have to pronounce a verdict, cannot be a witness before that verdict is pronounced." The modern statutes have not altered that principle. The 14 & 15 Vict. c. 99, only applies to civil proceedings; and sect. 3 was introduced, lest it should otherwise be thought to extend to criminal proceedings. If Curtis had been allowed to be called as a witness, every word that he said must have been in his own favour as well as in favour of Payne. If a co-prisoner is admissible at all, his fellow-prisoner or the prosecutor may compel him to be a witness. [LUSH, J.-If he was allowed to be called, he must be cross-examined, and if he declines to answer on the ground that his answers would tend to criminate him, that might have the effect of leading to his conviction. COCKBURN, C. J.-Or he might be crossexamined as to his past life, and the result might seriously injure his case. BRETT, J.-Is it not a fundamental rule of the law of England that when a prisoner is on his trial, he shall not be examined or cross-examined for or against hlmself?]

Pritchard in reply, cited Reg. v. Stewart 1 Cox. C. C. 174.

COCKBURN, C. J.-We are all of opinion that the witness was properly rejected at the trial; and we all agree that the proviso in the 14 & 16 Vict. c. 99, on which the prisoners' counsel relied, was only intended to prevent the statute being supposed to contradict or alter the rule of law as it has existed from the earliest times, according to which rule a party on his trial could not be examined or cross-examined as a witness for or against himself. It is impossible that the Legislature could have intended by such a proviso to do so. And the old law of England in that respect still remains unaltered,

Conviction affirmed.

In Bowles v. Lambert, 53 Ill. 237, it was held that the following writing was not a promissory note:

"I owe the estate of Zenas Warden one hundred ninety 15-100 dollars. May 13, 1863. "JOSEPH BOWLES."

It appeared that Bowles (now dead) in his lifetime was in the habit of giving to those who had accounts with him similar papers as statements, merely, of their accounes, and not as promissory notes; and, inasmuch as there was no person named in the instrument in suit as payee, the court inferred that it was intended only as a statement of the balance of his account with the estate of Warden.Albany Law Journal.

The Local Courts'

AND

MUNICIPAL GAZETTE.

JUNE, 1872.

The Legislature of California has passed an Act compelling persons who commence suits for libel to give security for costs.

In Virginia, whipping is said to be the favourite mode of punishing petty convicts. An exchange reports that "Every county and city has its post, its thongs, and its whipper." No rogue there goes "unwhipt of justice."

A bill has been introduced into the Legislature of Illinois, with reference to the management of railway trains. It provides that an engineer or conductor who is found drunk while on duty, shall be fined $100; and if, by his negligence, any injury occurs to person or property, he may be imprisoned, and fined $1,000.

An Act has been passed by the Pennsylvania Legislature, extending the competency of persons to be witnesses in criminal cases. It provides that in proceedings where the crime is not above the grade of misdemeanor, the person charged shall, at his own request, but not otherwise, be deemed a competent witness; but his neglect or refusal to testify shall not create any presumption against him, nor shall any reference be made to, or comment made upon, such neglect or refusal, by the counsel in the case, during the trial. Proceedings in forgery and perjury are excepted from the operation of the Act.

Statutes similar to this are already in force in some of the other States; for example, New York and Maine. Attempts have been made, chiefly by Lord Brougham, to introduce such a law into the English system, but hitherto in vain. We should like to know how the clause which lays it down that "no presumption shall be created against any person withholding his testimony," is to be carried out practically. It would puzzle even the traditional "Philadelphia lawyer" to prevent such a course of conduct from raising a prejudice in the mind of the jury against the person incriminated. We apprehend, however, that no serious injury will result in such a case, as almost every innocent person will

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seize the opportunity of clearing himself upon oath. Much might be said both for and against this enlargement of the law of evidence, but it is not necessary now to dwell upon the subject.

Lawyers are often blamed by their clients for giving wrong opinions on points of law, or rather for expressing views which are not sustained when the cases come before the courts, and this, in the minds of the suitor, means the same thing. We should recommend complaining litigants to read the judgment of the Court of Appeal in Forsyth v. Galt et al., where a question arose on the construction of a will as to the estate taken under it by a devisee, one C. It was held by Draper, C. J., and Gwynne, J. that the gift to C. was an estate in fee simple, subject to an executory devise over in the event of his dying without issue; by Wilson, J., and Morrison, J., that C. took a fee simple absolute; and by Strong, V. C., that C. took an estate tail, with remainder over in the event of his dying without issue.

There would be, however, the advantage in this case, that it would be scarcely possible to have given an opinion that would not have received the support of at least some of the Judges on the Bench.

and equity to run in distinct channels, will, at least until a perfect system of fusion is discovered, secure more satisfactory results than the turbid admixture which even now is manifest as a result of the equitable clauses of the Common Law Procedure Acts. Judging by the experience of the past, the administration of law and equity by one and the same court, and by one and the same set of judges, is not very encouraging. When the English Court of Exchequer possessed equity jurisdiction, it was of all courts the most unsatisfactory, so far as the causes on the equity side were concerned. The ability of even an Alderson was taxed to the uttermost to fulfil the diverse duties devolving upon him; and it is not to be expected that by Darwinian or other selection, there will be a succession of such Judges in new courts of multifarious jurisdiction. The constitution of our own Court of Error and Appeal, where a preponderance of common law Judges entertain appeals from the Court of Chancery, is another and nearer example of the unfairness of submitting pure questions of equity to a common law tribunal.

Our attention has been called to this sub

ject by the case of Shier v. Shier, 22 C. P. 147,

where, upon the validity of an equitable plea, Mr. Justice Gwynne dissented from the other two members of the court. Ever since the

right to plead equitably at law has been given, the majority of common law Judges have sought to restrict the right within the narrowest bounds and by the sheer weight of numbers, not of reason, they have prevailed. It is now, it seems, a cast-iron rule in England that a plea on equitable grounds can only be supported at law in cases where a court of equity would, under similar circumstances, decree an absolute, unconditional and perpetual injunction. Yet at the first, such Judges as Jervis, C. J., and Crowder, J. (in Chilton v. Carrington, 16 C. B. 206; and see S. C. 3 Com. L. R. 606), raised their voices in dissent, and in favour of a more liberal construction of the statute. In this Province, Mr. Justice Gwynne may be ranked among the number of able dissentients who have been outnumbered by their judicial brethren. Yet professional opinion is in favour of the minority. We cite what is perhaps the most remarkable expression of this opinion from an able article published in the Law Magazine, vol. vi. N. S. 252, part of which is as follows:

“The admission of equitable pleas and replications was the result of a laudable desire to save expense to both parties in cases wherein a suit at law would certainly be stopped in equity-in a word, to make the principles of one tribunal cooperative with, and no longer antagonistic to, the other. The words of the Act on this subject are large enough to let in any defence which shows matter for injunction; but the alleged necessity, or rather supposed convenience of the case, has induced the Judges to limit equitable defences to those cases in which the plea shows that an injunction absolute and unqualified would be granted in equity against the prosecution of the suit; but wherever something more would have to be done in equity than staying the action-as for instance a reforming of the contract, or taking an account-the courts of law have refused to allow an equitable plea, because they say that they have no machinery for working complete justice. If there be no machinery, however, it could be supplied readily and naturally by a proper development of the Master's office. At present, by repudiating the powers which were given to them, that they may do complete justice in any cause, the courts have either stultified the meaning of those who designed the provision for equitable jurisdiction, or have evaded a duty."

Shier v. Shier was an action for breaches of covenant in a farming lease. The covenant, as drawn, provided that the defendant should, during the term of five years, use in a proper manner upon the demised premises all the straw which should be raised thereon, and that he should not cut any standing timber, except for rails, buildings or firewood; and that he should not allow any timber to be removed from the demised premises. The defendant's pleas, on equitable grounds, were in substance that before the execution of the lease, the agreement of both parties was that the defendant should be allowed to remove straw from the demised premises to his own lot adjoining, provided he should use on the demised premises every second year, all the manure made on his own farm and the demised premises; which term, as to the manure, was expressed in the covenant: that through error of the conveyancer who acted as agent for both parties, and by mutual mistake, it was omitted to limit the covenant as to the straw; and that one of the alleged breaches was the defendant's removing the straw to his farm adjoining that as to the timber, it was the agreement, &c., that the defendant should be allowed to cut down standing timber on the demised premises to burn at his own house on

the farm adjoining, and that by mistake of the said conveyancer, he omitted to qualify the covenant accordingly, and the alleged breach was occasioned by the defendant cutting and removing wood from the demised premises for his own house on the farm adjoining. The majority of the court held, upon demurrer, that as the term was still current and the contract executory, complete justice could not be done between the parties in a court of equity without a reformation of the covenant, which, as a court of law, they had no power to enforce. Gwynne, J., dissenting, held that complete justice could be done between the parties to that action without any reformation of the

covenant.

Admitting that the weight of authority is with the majority of the court, as they state the case, yet in one point of view they seek to be more equitable than the Court of Chancery itself. The effect of a reformation of the covenant would be to limit it, to curtail the plaintiff's legal rights in such a way that it is not supposable he would ask as a condition of relief, upon bill filed to restrain his action, that the covenant should be reformed. The covenant as it stands covers every stipulation intended to be made between lessor and lessee, and something more: the suit is in respect of that something more, which it is admitted is an unjust claim. The covenant as it stands protects the lessor against every possible breach by the lessee both in respect to what was agreed between them, and as to other matters not so agreed. It would not benefit the plaintiff to have the covenant reformed as to these other matters; it would not in any way enable him more effectually to assert his proper rights in any subsequent suit. *

Under these circumstances, it is manifest that a court of equity would restrain the suit in question; but it is not at all manifest that the lessor would ask a reformation of the unlimited instrument, or that a court of equity would impose a reformation upon him "in spite of his teeth," to use the vigorous judicial expression of Ventris, J., in Thompson v. Leach, 2 Ventr. 206. This point is adverted to by Gwynne, J., when he says, "for the doing which (i. e., the reformation by a court of equity), for any practical purpose, no actual necessity appears to exist" (p. 159). On this point we should like to see the case go to appeal; but perhaps "la jeu ne vaut pas la chandelle."