Page images
PDF
EPUB

Dominions; (2) Persons who, while likely to serve efficiently in a Second Chamber, may not have the physical vigour needed to bear the increasing strain. which candidacy for a seat in the House of Commons and service in it involve; (3) A certain proportion of persons who are not extreme partizans, but of a cast of mind which enables them to judge political questions with calmness and comparative freedom from prejudice or bias.

With regard to the question of the position which the Second Chamber ought to hold in our Constitutional System, it was agreed "that a Second Chamber ought not to have equal powers with the House of Commons, nor aim at becoming a rival of that assembly. In particular, it should not have the power of making or unmaking ministries, or enjoy equal rights in dealing with finance. This was prescribed not only by long-established custom and tradition, but also by the form of our Constitution, which makes the executive depend upon the support of the House of Commons, and would be seriously affected in its working by extending to a Second Chamber the power of dismissing a Government. All precautions that could be taken ought to be taken to secure that in a Reformed Second Chamber no one set of political opinions should be likely to have a marked and permanent predominance, and that the Chamber should be so composed as not to incur the charge of habitually acting under the influence of party motives. The Second Chamber should aim at ascertaining the mind and views of the nation as a whole, and should recognize its full responsibility to the people, not setting itself to oppose the people's will, but only to comprehend and give effect to that will when adequately expressed. It should possess that moral authority which an assembly derives not only from the fact that its members have been specially chosen to discharge important public duties, but also from their personal eminence, from

VOL. XXXVIII C.L.T.-25

their acknowledged capacity to serve the nation, and from the confidence which their characters and careers are fitted to inspire. It should, by the exercise of this authority, and especially by evincing a superiority to factious motives, endeavour to enlighten and influence the people through its debates, and be recognized by the people as qualified, when a proper occasion arose, to require the reconsideration of important measures on which their opinion had not been fully ascertained.

66

The terms of reference were taken by the Conference as not covering anything that relates to the judicial functions of the House of Lords, whether as an ultimate Court of Appeal or otherwise." But, at the same time, it is to be hoped, as the Law Times says, that "the creation of a strong, and so far as possible, an impartial Second Chamber will synchronise with the creation of an Imperial Court of Appeal, which will assume the judicial functions of the House of Lords and the Judicial Committee of the Privy Council, and will, with the introduction of the best talent from overseas, be a final Court for the disposal of appeals from throughout the Empire. Such a tribunal, after allegiance to the Crown, would form the strongest binding tie between the mother country, its dominions, colonies and dependencies.

W. E. WILKINSON.

THE JUDICATURE ACT IN NEW BRUNSWICK

BY M. L. HAYWARD, B.C.L., OF THE NEW BRUNSWICK BAR.

1. INTRODUCTION.

2. AFFIDAVITS.

3. AMENDMENT.

TABLE OF CONTENTS.

(a) Of Capias.

(b) Of Statement of Claim.

4. APPEALS.

(a) From County Court.
(b) Under R. R. Act.
(c) In Injunction Cases.
(d) Stay of Proceedings.
(e) Failure to Enter.

5. CERTIORARI.

6. EVIDENCE ON COMMISSION.

7. INTERROGATORIES.

8. JUDGMENT.

9. MISJOINDER.

10. NEW TRIALS.

11. NOTICE.

(a) to admit.

(b) to commit.

12. NO PROVISION IN RULES.

13. ORDER FOR DIRECTIONS.

14. ORIGINATING SUMMONS.

15. QUO WARRANTO.

16. PERVERSE VERDICT.

17. SERVICE OUT OF THE JURISDICTION.

18. STATED CABES.

19. TENDER.

20. THIRD PARTIES.

21. TRIAL.

22. WORKMEN'S COMPENSATION.

1. INTRODUCTION.

In 1909 New Brunswick adopted the Judicature Act' in place of the Supreme Court Act which was modelled on the old Common Law Procedure Acts, and thereby placed herself in line with the more pro

'N. B. Acts of Assembly, 9 Edw. VII., ch. 5.

gressive provinces of Canada.

2

The new Act has

worked well, and every New Brunswick attorney-or solicitor we should say is familiar with the new order of things, at least he or she3 ought to be by this time.

Although in the application and interpretation of the Act and rules the profession has had the benefit of the English and Canadian cases decided along the same lines, there is, however, a fair collection of New Brunswick cases deciding points of practice under the Act, all of which are of peculiar interest to the New Brunswick lawyer, and which it is proposed to discuss in this Article briefly, and, we trust, to the point.

2. AFFIDAVITS.

The first case of any importance was D'Israeli v. Isaacs, which arose on an apparent conflict between Order 38, Rule 7,5 and Order 38, Rule 23.o

In this case a judge at Chambers acted upon affidavits to which papers were annexed and initialled by the officer taking them, and were not referred to as exhibits, etc., as required by Rule 23.

On appeal the Supreme Court held that they would not interfere with the discretion of the judge at Chambers, in view of Order 70, Rule 1,' but intimated that

29 Edw. VII., ch. 5, sec. 13.

3 In re Mabel P. French, 37 N. B. 359; N. B. Acts of Assembly, 6 Edw. VII., ch. 5.

[blocks in formation]

Every paper annexed to an affidavit, save affidavits of service of writs of summons returned by the sheriff or other officer, shall be marked by the commissioner or officer taking the affidavit with his name or the initial letters of his name.'

"Accounts, extracts and other documents referred to by affidavits shall not be annexed to the affidavit or referred to in the affidavit as annexed, but shall be referred to as exhibits.'

'Non-compliance with any of these Rules, or with any rule of practice for the time being in force, shall not render any proceedings void unless the Court or a judge shall so direct, but such proceedings may be set aside either wholly or in part as irregular, or amended, or otherwise dealt with in such manner and upon such terms as the Court or judge shall think fit.'

the party offering such affidavits may be deprived of costs under Order 38, Rule 3, and Order 65, Rule 27.20

"This present motion, however, was at Chambers," said Barker, C.J., in delivering the judgment of the Court, "and we will assume that the exhibits should under the rule have been produced and not annexed to the affidavit as they were. It by no means follows that this appeal should be allowed. There are three ways of giving evidence of documents by affidavit. The document may be copied bodily into the affidavit, a copy or the original may be annexed to the affidavit and referred to as a part of it, or the originals may be produced as exhibits and verified and identified as the rule directs. The effect, however, of placing the evidence of the documents before a judge in one of these ways, when there is a rule directing it to be done in another, does not go to the validity of the affidavit, so as to prevent it from being used, as a fatal objection to the jurat might do. I do not say that a judge at Chambers would not be fully justified in refusing to act upon such an affidavit, but if he does, the only effect, in my opinion, is to penalize the party transgressing the rule by depriving him of the costs. There is a practical value in the rule, which I think it would be well for the profession not to overlook. Unnecessary prolixity in affidavits is expressly dealt with by Order 38, Rule 3, which makes the party liable for the costs. As a rule it is not convenient that original documents forming a part of an affidavit should be filed in Court as they would be if annexed to the affidavit, and in many cases it is not desirable that they should go out of their owner's possession. Besides this, it very often happens that the only relevant part of the document is a very small part of it; but in order to obviate the objection to the party making his own selection of the evidence, the whole document has to be copied if annexed to the affidavit in the usual way, and with every copy of the affidavit there must be a copy of the document when a few lines are all in any way relevant to the matter in issue. If you apply Rule 23, all this inconvenience and expense is obviated. The documents are verified by the affidavit and identified by the commissioner. They are produced to the judge, and the opposite party is entitled on notice to an inspection of them when he can take a copy of the whole or such part as he wishes: Order 31, Rule 15. The party against whom the affidavit is used has no cause for complaint. He may have been served with papers which are of no service to him, but if the cost of them falls on the party who served them he is not injured. If the papers are annexed, as in this case, the party using the affidavit is equally bound to give inspection as he is in the case of exhibits produced."

This decision was in Rule 23, was amended

20 See infra, p. 396.

1911, and in 1913 Order 38,

so that the decision in the

'Accounts, extracts and other documents referred to by affidavit need not be annexed to the affidavit or referred to in the affidavit as annexed, but may be referred to as exhibits.

« PreviousContinue »