Judge Deacon thinks that the grand jury "was always and ever a piece of machinery, that, in the hands of unscrupulous men, was capable of doing mischief and occasionally defeating the ends of justice, without any responsibility whatever." Judge Ardagh says, "I know them to have been used to interpose as a shield to the guilty"; and that "proverbially they are supposed to be an entirely independent body." Judge Robinson says, "I never knew them do any good. I have known them do harm. I have known a grand jury prevent a man bringing a case of nuisance before the Court for trial-a case which he was perfectly justified in prosecuting." Judge Woods thinks that the lodges and brotherhoods are an element that does not hesitate to interfere with the administration of justice in order to secure immunity of their members, and that grand jurors are subjected to a heavy pressure from these classes, and too often to the obstruction and perversion of justice. In all these cases one would like to know, before accepting these views, what evidence the learned judges had in the cases mentioned that the grand juries did wrong, and that the persons freed from the accusations were guilty. The proceedings in the jury room are secret. The judge who is awaiting the result of the inquest is supposed to know nothing of the evidence against the accused. And it is certainly an extraordinary thing that he afterwards should be able to say that a guilty person had escaped. We feel satisfied that without some very powerful and convincing evidence these opinions would not have been expressed, but it would have been better to have sustained them with facts. It cannot be that the evil is so widespread that grand juries should be abolished. We cannot believe that the whole community is so corrupt that at every Assize and every Sessions we may expect that the Grand Juries will ignore a certain number of bills for prejudice, or something worse, against their solemn oaths. If it be the fact, how much more dangerous to reduce their numbers and so make it more easy for designing persons to "work" them.

In the limits to which we would keep it is impossible to

do full justice to the opinions expressed for abolition. Some are unsupported by reasons, but they are few. Before we abolish grand juries we must have a consensus of opinion upon their uselessness or their depravity. On the contrary there exists a great variety of opinion. What one asserts another denies, and it is hopeless to arrive at a satisfactory determination that there is any evil in the system. And at any rate until some better system is suggested and thoroughly canvassed it is useless to talk of abolishing the Grand Inquest.

Uncertified Conveyancers.

A large and representative committee of Benchers has been appointed to consider and report upon this subject; this committee met a short time since and Messrs H. H. Strathy, Q.C., Barrie, and G. H. Watson, Q.C., Toronto, were appointed chairman and vice-chairman respectively.

It is the intention of the committee to report to convocation this month and although it is late to ask the profession for suggestions it is most probable that the matter will be in abeyance for some time.

It will be of material assistance to the committee to have the considered views of many members of the profession on the subject, and such communications are particularly requested.

THE

CANADIAN LAW TIMES.

DECEMBER, 1891.

DOWER IN MORTGAGED LAND.

IN approaching this subject on behalf of the defendant

Gordon, in the case of Pratt v. Bunnell (a), counsel had to contend with what His Grace the Duke of Argyll, in a recent article, called the "blinding effect of invincible preconceptions." The current of decision had been so steady in one direction that it seemed hopeless to try to stem it. The law might have been considered "settled " so long had the decisions leaned in the one way. It has fallen to the lot of a Divisional Court, however, to divert the stream into another channel. No one would have been surprised, we fancy, if the decision in Pratt v. Bunnell had been given when the matter was, in familiar legal jargon, res integra; but it is somewhat a surprise to find the decision given when the matter had become so well settled. We propose to review the course of decisions on the subject, including the case just mentioned.

The cases may be divided into three great classes, distinguished by a statutory difference:

I. Those cases which were decided before the Act of 1879 (b), and

II. Those decided after it was passed.

These may again be subdivided into

(a) Cases of purchase by the husband, where the mortgage has been given for the unpaid purchase money, (i) where the wife does not join; (ii) where she does join.

(a) 21 Ont. R. 1.

VOL. XI. C.L.T.

(b) 42 Vict. cap. 22.

25

(b) Cases where the husband has mortgaged his land for a debt or loan, having been seised of a legal estate during the coverture.

And in each of these cases there is to be considered the wife's position,

1. Where she does not execute the mortgage.

2. Where she does execute the mortgage; as surety of the husband pledging her property for his debt.

3. Her right to redeem, before and after his death.

4. The quantum of her right, i.e., whether she is dowable in the whole land with the right to payment out of the surplus, or whether she is dowable out of the surplus only.

III. Purchase of an equitable estate.

A fourth class comprises,

IV. The right of the mortgagee's wife to dower.

I. The cases before the statute of 1879.

(a) Purchase by the husband where the mortgage has been given for unpaid purchase money. And under this head,

(i) Cases where the wife does not join.-This, at the present day, does not present any difficulty; but in early days in this Province there was a very weighty opinion expressed against the right of the wife to dower when the husband executed a mortgage to the vendor for unpaid purchase money at the same time that he received his purchase deed. In Potts v. Meyers (c), it appeared that a man had purchased land and paid only a portion of the purchase money receiving a conveyance and giving a mortgage at the same time for unpaid purchase money. After his death his widow sued for dower and the majority of the Court of Queen's Bench held her entitled thereto, but Robinson, C.J., dissented. The majority held that the seisin of the husband, but for a moment, was a beneficial seisin and enabled him to reconvey by way of mortgage; that the period of time during which he was seised was of no consequence. They agreed that a transitory seisin would not suffice if he had (c) 14 U. C. R. 499.

it only as an instrument" as put by Coke. The grounds of the dissenting judgment turn upon the effect of the seisin in part, and in part upon the equitable character of the transaction as against the mortgagee. "Now a person," said the learned Chief Justice, "who buys an estate which he has yet to pay for, and who immediately upon the conveyance to him being executed gives back a mortgage in fee to secure the purchase money, has only an instantaneous seisin." This is not, however, the way in which the term is used. It is said that where the same act which gives the husband the estate takes it out of him, or where by the same fine a man takes land and renders it back again, or it may be added where he is a grantee to uses, his wife is not dowable. Again the learned Judge puts the deed and mortgage in the same light as if the husband had only contracted to purchase, and had taken a covenant to make him a title on his completing his payments. This is ignoring the distinction, which at that time could not on any pretence be ignored, between a contract and a completed transaction. Even at this day the distinction must be observed notwithstanding the prominence given to Equity by the Judicature Act (d). Lindley, L.J., in a case cited in the latter case, said, "They are inviting us to destroy the distinction between an agreement to convey property and a conveyance of the property." The result was that in Potts v. Meyers, the demandant was held entitled to dower. The same was held in Lynch v. O'Hara (e). And in a subsequent case of Norton v. Smith (f), Potts v. Meyers was followed by the Chief Justice, and the decision was affirmed on appeal by the Court of Error and Appeal (g), and the law is now well established. In the latter case, no purchase money was paid and the husband secured the whole by mortgage and ultimately released his equity by redemption to the mortgagor, his wife not joining in the mortgage or the release.

The right of the wife to redeem the mortgage is one that does not enter into this branch of the subject. Her right

(d) See Re Featt & Prescott, 18 A. R. 1. (ƒ) 20 U. C. R. 213. (g) 7 C. L. J. 263.

(e) 6 C. P. 259.