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or right to damages are merged in the fact that the controversy arises out of the same transaction and that all of the parties have an interest in the whole or some part of it. The effect of this rule is to prevent multiplicity of actions and reduce the amount of litigation arising out of a single transaction.

It was feared at one time by the bar of Ontario that this and other rules making for simplicity and speed would reduce the business of the bar, but the result has proved quite the contrary. The knowledge that all controversies arising out of a single transaction may be disposed of at one trial swiftly, justly and certainly has encouraged litigation. I have before me the calendar of the supreme court of Ontario, appellate division, for appeals entered for the month's session, commencing April 7, 1913. There are sixty-nine cases on the list, fifty-one of which are from judgments entered during 1913, that is to say, within three months of the date of the argument on appeal; thirteen within six months and five older cases antedating this period. Of the cases in 1913, five are less than a month old since judgment, thirty-one are less than two months old. The appellate divisions of Ontario hear and dispose of about 800 cases per annum whereas the average record of the supreme and superior courts of Pennsylvania is about 1,200 cases per annum. It will be seen therefore that in Ontario, with a population of about 3,000,000 as against a population of 8,000,000 in Pennsylvania, the appellate courts dispose of almost twice as many cases in proportion to population as the appellate courts of Pennsylvania. This should allay the fears of members of the bar that simplicity and speed would reduce the emoluments of the profession. The simpler the procedure and the more expeditious the trial the greater will be the interest of the public in this method of adjusting its difficulties and the greater the amount of business that the bar will be called upon to administer.

One of the startling methods for saving time is that laid down in Ontario rule 232:

On all appeals or hearings in the nature of appeals, and on all motions for a new trial, the court or judge appealed to shall have all the power as to amendment and otherwise of the court, judge or officer appealed from, and full discretionary power to receive further evidence, either by affidavit, oral examination before the court, or judge appealed to or as may be directed.

Under this rule, the court on appeal will hear testimony if necessary to supplement the record from the trial court instead of send

ing the case back for retrial with all the attendant delay, cost and disappointment.

After pleadings are filed either party may be cross-examined by the other prior to trial upon the allegations therein.' This examination for discovery is necessary in three-fourths of all cases. By compelling disclosure of the real merits and defects of the case of both sides it promotes settlement out of court and saves the time and cost of trial; it also enables better preparation to be made and curtails the length of the trial.10

A series of similar rules11 are those relating to the production of documents before trial whereby not only parties but also third persons may be compelled to exhibit for inspection papers alleged to relate to any matter in controversy. The theory underlying these rules is that no man shall be permitted to conceal any fact necessary to bring into light the real merits of the controversy, and the element of chance, which makes litigation so fascinating a game to the bar and so distressing to the litigants in many of the United States, is reduced to a minimum.

The Jury

Under the Ontario system1 the right to trial by jury in civil cases exists only in certain cases in tort, and practically all other issues of fact are tried and all damages assessed by a judge without a jury. If a party desires a jury trial notice must be given, but notwithstanding such notice the presiding judge may dispense with the jury. The court may direct the jury to give a special instead of a general verdict,15 and in all actions whatsoever, except in an action for libel, the judge may direct the jury merely to answer questions of fact put to them by him and not to give any verdict at

Rule 327, etc.

10 Paper of J. H. Spencer read at meeting of Ontario Bar Association in 1908, and Report of the Committee on Law Reform at same meeting. 45 Can. L. J., 19, 23.

11 Rules 348-352.

12 Judicature act, sec. 53.

13 Ibid, sec. 55.

14 Ibid., sec. 56. 15 Ibid., sec. 60.

all.16 This method of substituting answers to specific questions for a verdict is used in nearly all cases. "The court may obtain the assistance of merchants, engineers, accountants, actuaries or scientific persons in such way as it thinks fit to enable it to determine any matter of fact in question in any cause or proceeding and may act on the certificate of such persons."17

It will be seen from these provisions that a profound change has taken place in Ontario in trial by jury. This ancient system which contributed so much to the development of the English constitution and to the maintenance of the liberties of the people no longer satisfies the demands of justice. Blackstone foresaw this,18 and the French Canadians at the time of the introduction of English law could not understand how Englishmen would sooner have their property rights determined by the jury of tailors and shoemakers than by judges.19 The American states are hampered in the establishment of jury reform by the provisions of the seventh amendment to the federal constitution.

Judicial Opinion in Legislative Matters

Although strictly speaking this subject is not relevant under the general caption of this article, I cannot refrain from making mention of a method in vogue in Ontario whereby much bad legislation is nipped in the bud. The practice is to refer all private acts to two judges for an opinion upon their justice and expediency,20 and furthermore the lieutenant-governor in council, i.e., the government, may refer to the court for hearing or consideration any matter which he thinks proper to refer for an opinion as in an ordinary action. If the constitutional validity of an act of the legislature is involved the attorney-general must have notice and the court may direct any party in interest to be notified of the hearing or may request some counsel to represent such interest. After hearing the

16 Ibid., sec. 61.

17 Rule 268.

183 Black. Com., 381.

19 Practice, Civil and Criminal in Ontario, by the Hon. William Renwick Riddell, an address delivered before the annual meeting of the New York State Bar Association, January 20, 1912, p. 10.

20 R. S. O. 1897, cap. 52.

21 Ibid., cap. 84.

court files an opinion which becomes a judgment subject to an appeal as in an ordinary action. This system has not yet been expanded to its full possibilities in Ontario, and is, I believe, practically unknown in the United States. As a method for eliminating much improper legislation it deserves most serious consideration. Such a method would impose additional duties on the judges, but granting the desirability of having a judicial opinion upon legislation either prior to its enactment or before any actual case arises under it, it might be advantageously adopted and expanded. It is in line with the general modern tendency to rely in technical matters on the opinion of experts, and there is much to be said in favor of introducing the expert into the field of law-making instead of limiting his function to the field of interpretation only after an actual controversy has arisen, in which the legislative act in question is invoked and must be applied.

The comparison between the Ontario and American practice, briefly and superficially herein presented, points out several lines of rational reform which it would be well for our statesmen and legislators to consider in their attempts to bring judicial procedure into alinement with modern needs and tendencies.

LEGAL PROCEDURE IN ENGLAND

BY JOHN L. GRIFFITHS,

Consul-General of the United States, London, England.

In reviewing the administration of justice in any country, the most important thing to consider perhaps is the character of the judiciary. This is especially true of England, where the judges take a far more active part than they do in America in the trial of causes, and where they are far more outspoken in their comments on the evidence. The contrast between the manner of choosing judges in the two countries is very striking. The judges in England are appointed to serve during good behavior; they are paid adequate salaries, and upon retirement are provided with substantial pensions. The lord high chancellor receives an annual compensation of £10,000; the lord chief justice £8,000; the members of the high court of justice £5,000; the county court judges £1,500; and the magistrates of the Metropolitan (London) police courts as a rule £1,500. Justices of the peace serve without pay; they deal with minor cases, usually of a criminal nature, although they have a limited civil jurisdiction. In criminal prosecutions, where a grave offense is charged, and the justices are convinced of the probable guilt of the accused, it is their duty to bind him over for trial at the assizes. Political considerations, broadly speaking, have no weight in English judicial appointments, although in the case of men of equal merit the party in power would naturally be inclined to appoint a judge of its own political faith. An exception to the general rule is to be found in the case of the lord high chancellor, who retires from office with his party. His duties, however, are not purely judicial, as he presides over the deliberations of the House of Lords. It may be taken for granted when an English barrister becomes a high court judge that he previously held a prominent position at the bar, and had shown his probable fitness for the bench.

A foreigner who studies the English judicial system is very strongly impressed with the few courts in England in comparison with the great number in America. In Liverpool, for example-a city with a population of about 750,000-all the important cases

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