The case of Coffin v. Quinn, ante, p. 306, is, we believe, the first occasion on which a decision in the Magdalen Islands has appeared in the reports. These Islands, owing to their peculiar position, form a Circuit by themselves. The Court, which sits twice a year, has jurisdiction over civil causes whatever may be the amount. There is no local bar, the population of the Islands being only about five thousand. The pleadings in all cases are oral. There is regular connection with this territory but once a week, and the Judge who goes there to hold the Court is obliged to remain until the steamer returns from Pictou in the following week. it appeared that a canal had been built by authority of Parliament, and carried across a river and the adjoining valley by means of an aqueduct and an embankment containing several arches. A brook fell into the river above its point of intersection with the canal. In times of flood the water, which was penned back into the brook, overflowed its banks, and was carried by the natural level of the country through the arches into the river, doing much mischief to the lands over which it passed. The aqueduct was sufficiently wide for the passage of the river at all times but those of high flood. The occupiers of the injured lands adjoining the river and brook, for the protection thereof, erected banks (called "fenders ") so as to prevent the flood-water from escaping, consequently the water, in time of flood, came down in so large a body against the aqueduct and canal as to endanger them and obstruct the navigation. The fenders were not unnecessarily high, and without them many hundred acres of land would be exposed to inundation. It was held that the defendants were not justified, under these circumstances, in altering for their own benefit the course in which the flood-water had been accustomed to run; that there was no difference in this respect between flood-water and an ordinary stream; that an action would have lain at the suit of an individual, and consequently that an indictment lay where the act affected the public. The conviction was accordingly In O'Connell v. East Tennessee, V. & G. Ry. Co., it was held by the Supreme Court of Georgia, May 27, 1891, that when a railway company erects an embankment for its track along the margin of a river, the accumulated waters of which, in times of flood, had previously escaped on that side, it being lower than the other, but which thereafter, and because of the embankment, overflowed the opposite side more than it had done before, and thus injured land there situate, the owner has a right of action against the company; or if, by the erection of such embank-sustained. Tenterden, C. J., observed: "It ment, the river was deflected from its natural course, or deposits were made therein so as to raise its bottom, and from either of these causes such land was injured by the river when swollen, a recovery may be had for the damages thereby occasioned. Reference was made by the Court to the English case of Rex v. Commissioners, etc., of Pagham, 8 Barn. & C. 355, in which it was held that an owner of land on the seashore could erect works to protect his land from encroachments by the sea, without liability for damage inflicted on his neighbor. The sea was called a "common enemy," against which each might fortify at will. But this doctrine was held not to apply to a case like that of Rex v. Trafford, 1 Barn. & Adol. 874. In the case last cited has long been established that the ordinary course of water cannot be lawfully changed or obstructed for the benefit of one class of persons, to the injury of another. Unless therefore a sound distinction can be made between the ordinary course of water flowing in a bounded channel at all usual seasons, and the extraordinary course which its superabundant quantity has been accustomed to take at particular seasons, the creation and continuance of these fenders cannot be justified." A point of some interest as to the sufficiency of notices was decided by the English Court of Appeal in Mercantile Investment and General Trust Co. v. International Company of Mexico. By the trust deed notice of a meet-sons gave any consideration for the transfer, ing of debenture-holders had to be given "at least fourteen days before the date at which the meeting was to be held." Notice was given by newspaper advertisement on September 23 for a meeting on October 8, and there are fourteen clear days between these dates. It was, however, contended that notice by advertisement was not sufficient, and that if it was sufficient "the notice, though advertised on September 23, ought not to be held to have been given on that day, as it probably could not, or would not, reach the debenture-holders for some time afterwards." Some support was given to these arguments by the fact that three days before the meeting circulars were sent out to all debentureholders whose addresses were known. The Court of Appeal rejected both contentions. They held that notice by advertisement was the ordinary course of business in such cases. They held, also, that the rule that notice is not good until it is received was inapplicable in the circumstances; otherwise, as the debenture-holders might be scattered all over the world, it would be impracticable to fix beforehand when any meeting could be held, and the limit of fourteen days would be rendered nugatory. QUEEN'S BENCH DIVISION. LONDON, Nov. 5, 1890. CHITTY et al. v. BOORMAN et al. (26 L. J. N. C. 26.) Partnership-Transfer of Business-Payment of Annual Sum out of Profits to Transferor-Liability of Transferor for Debts of Firm. and there was no assignment of the stock-intrade. The business was to be carried on under the name of 'Boorman Brothers.' The defendant, Robert Boorman, was at all times to have access to the books, etc., and if at any time he was not satisfied with the way in which the business was carried on he was to be at liberty to retake possession of it. The sons carried on the business for several years under the deed, and during that time ordered goods of the plaintiff and others for the purposes of the business. The defendant, Robert Boorman, not being satisfied with the way in which the business was carried on, retook possession of it under the provisions of the deed. The plaintiffs thereupon brought an action for the price of the goods they had supplied to the firm, claiming to make him liable as a partner. The County Court judge held that no partnership existed. The plaintiffs appealed. Henn Collins, Q.C., and Gore, for the plaintiffs, argued that the father continued the real owner of the business, or, at least a partner in it, and that he was, therefore, liable. Clarke Williams, for the defendant, contended that the business had, by the deed, been absolutely transferred to the sons of Robert Boorman, and that he thereupon ceased to be a partner. HAWKINS, J., was of opinion that the appeal must be allowed, and judgment entered for the plaintiffs. The sons paid no consid eration for the transfer of the business, and it was merely passed over to them in order that they might carry it on, the father retaining a right to a share of the profits. No property really passed by the deed from the father to the sons. The clause by which Appeal from the Tunbridge Wells County the father was at all times to have access to Court. The facts were shortly these: The defendant, Robert Boorman, was the owner of a business at Tunbridge Wells. Being desirous of relieving himself of the management of it, he entered into a deed with his two sons, by which he transferred the business to them, and the sons agreed to carry it on and to pay their father a sum of £100 a year out of the profits. There was no evidence that the the books, accounts, etc., was utterly opposed to the view that the business had been absolutely handed over to the sons. Moreover, the provision giving the father the power to retake possession of the business would deprive the creditors of the firm of all security unless he were held to be a partner. The arrangement clearly constituted a partnership, and the father was, therefore, liable. STEPHEN, J., was of the same opinion. QUEEN'S BENCH DIVISION. LONDON, Feb. 5, 1891. In re GRIFFITH et al. Solicitor-Refusal to Charge for Services rendered to Client-Power of Court to Order Delivery of Bill of Costs-6 & 7 Vict. c. 73, 8. 37, Appeal from chambers. JUDICIAL SALARIES. In the Senate, Sept. 24, Hon. Mr. Dickey rose to "call the attention of the House to the inadequacy of certain judicial salaries in the Superior Courts of the Dominion; and to enquire whether it is the intention of the Government to propose a remedy for the existing state of things?" He said: In calling attention to the insufficiency of the judges' salaries throughout the superior and higher courts of the Dominion, I wish to say that I do it on my own mere motion, and not on Messrs. Griffith, Eggar & Griffith, a firm the suggestion of anyone. I have no perof solicitors, had conducted some proceedings sonal interest in the matter beyond that in the Divorce Court on behalf of certain which attaches to any member of this House clients. The solicitors alleged that there was who is interested in having an efficient ada verbal agreement that they should receive ministration of justice. Hon. gentlemen will a sum of £1,000 for their services. After all agree with me, I think, that this end will they had been employed a short time, the not be attained unless by an adequate and clients paid them £500 on account of expen- independent judiciary. The scale of salaries ses. Upon the termination of the proceed-attached to those high offices was arranged ings, about two years later, the solicitors applied for the balance of £500. The clients demanded a bill of costs, with items, denying that they had ever entered into any agree ment to pay £1,000. The solicitors thereupon refused to deliver a bill, paid the £500 they had received on account into the clients' bank, and wrote a letter refusing to make any charge for their services. The clients then applied for an order under 6 & 7 Vict. c. 73, s. 37, that the solicitors should deliver a bill of costs; but the master, on reading the letter of the solicitors repudiating all claim in respect of costs, refused to make the order. POLLOCK, B., affirmed the master's decision. The clients appealed. shortly after Confederation, and I may say, speaking generally, without going into particulars, for I do not propose to quote figures, that the scale was made upon a basis of the salaries in the two larger provinces, being about $1,000 above those of the smaller provinces. I do not stand up here to contend for a hard-and-fast uniformity in a matter of this kind, because the circumstances of the various provinces are somewhat different; yet, as the jurisdiction of the different courts is co-ordinate, I think some regard should be paid to this in any readjustment of salaries. A short time ago we had an hon. gentleman of this Senate called to a high position in Quebec. He was an ornament to this House, as I am quite sure he will be an ornament to the ermine that he wears. It has leaked out, and I presume it is correct, that his hesitation for a time in accepting that high position arose entirely upon the question of the insufficiency of the salary attached to the office and necessary to the maintenance of the high position which be occupies. That, I am prepared to say, is not a solitary instance. I am not standing here as an ad The COURT (WILLS, J., and WILLIAMS, J.) were of opinion that the decision appealed from was correct; section 37 of 6 & 7 Vict. c. 73 had no application except in cases where there was a 'party chargeable,' and, after the solicitors' letter refusing to make any claim for costs, it was clear that the clients were not 'chargeable.' There was, therefore, no jurisdiction to make the order asked for, though the case might have been different if any misconduct had been im-vocate of high salaries. I merely call the puted to the solicitors, by reason of the inherent power possessed by the Court over its officers. Appeal dismissed. attention of the Government and the House to the position of this matter, and in connection with the fact that those salaries were arranged nearly a quarter of a century ago. During that period, which has been the life of the nation to which we belong, we have seen throughout very large increases, beginning with the indemnity of the members of Parliament, and increases in salaries of Ministers, and increases in the salaries of almost - every public officer down to the bottom, and yet the salaries of judges have remained stationary. Nor can it be said that the wants of those judges and the purposes for which salaries have been given have been lessened during that period. On the contrary, I think we must all admit that not only have the exigencies of their position been greater, but their salaries have remained in a position which scarcely enables them to maintain the social position which they occupy, much less meet the increased cost of living. My hon. friend, who will answer this question, whom we have all gladly welcomed as the leader of this Government, will hardly wish to see the American system introduced into this country. I am quite sure he would shrink from the idea of any judge being obliged to descend from the bench into the forensic arena in order to obtain a living for himself and family. I do not wish to make any sugges tions, and I trust that in the few observations that I have made I have not imported any thing into the question of a controversial character. Hon. Mr. Kaulbach-This is not exactly in the nature of a question, and therefore I think I am in order in making a few remarks on the subject. I quite agree with my hon. friend in all that he has said, as to the necessity for the effective administration of justice, of gentlemen occupying such high positions being paid suitable salaries. I also appreciate the skilful manner in which he has brought this question before the House and the Government. It involves a money vote, and the hon. gentleman has put his question in such a manner that it is not open to objection on that score. I am sorry that he has confined his remarks to the judges of the Superior Courts. The inadequacy of salary of which he complains is not confined to those judges, but extends also to the County Court judges. There is a remarkable instance of the kind in Halifax. Hon. gentlemen know that the judge of the County Court of Halifax I is a man of the highest standing, learned in the law, and having most important duties to perform. The public have confidence in his judgments. The amount of work that he does exceeds that of a Superior Court judge, and, in fact, is larger than the work done by all the other County Court judges in the province. He has a social position as high as that of any judge of the Superior Court, and the cases which come before him require as great knowledge of law and judicial capacity as those which come before the highest courts. brought this matter before the Minister of Justice some years ago, and he saw the injustice that was done to that gentleman, but he felt that he could not very well take an isolated case. He promised that some time in the future-in the not far future-the whole question of the judges' salaries would be considered, and he thought that this was a case that was worthy the consideration of Parliament. I hope, therefore, that the Government will specially consider this case to which I have referred. Something must be done to remedy the injustice which has been done so long to the County Court judge at Halifax. Hon. Mr. Scott-I am very glad that the hon. gentleman from Nova Scotia has brought up this subject, although it is one that has been from time to time brought before the notice of Parliament in another place during the last ten years. Speaking more particularly of the Province of Ontario, with which I am familiar, I do not hesitate to say that the judges of the higher courts are very much underpaid. The hon. gentleman expressed the hope that we would not have to adopt the American system. There is one feature of that system that I approve of-that is, the remuneration of the judges. The salaries paid to judges of the New York courts are at least twice as large as those paid to judges of the High Court of Justice or the Court of Appeals in Ontario. I do not think in any part of the world judges perform more work or are more painstaking than in the Province of Ontario, and it is quite probable, so far as my observations go, that the remark would equally apply to the other provinces; but I am familiar with the judges of Ontario, and I think we do not show the high appreciation in which those judges ought to be held in the would refuse to sacrifice themselves for the benefit of the country. On the other side of the line it is different. I was not aware that this question was coming up to-day. I have not, therefore, prepared myself with the figures; but anyone who will refer to the statistics of the United States will find that the salaries paid the judges there are more than double the salaries paid to judges in Ontario and Quebec. We are proud of our judges, and we should compensate them. The cost of living has increased of late years; the cost of keeping up a social state has grown of late years, and this country would be warranted in paying the judiciary higher salaries. From time to time the subject has been brought up elsewhere, and governments have promised to consider it. As far as I can gather, the difficulty seems to be in adjusting between the several provinces, because it is felt that the business in some of the provinces is very much greater than in other provinces. It does not seem fair; the bench expected it and were entitled to look for it. I hope the Premier will see his way to adjusting this question. compensation that we offer them for their services. We boast of our judiciary, and claim that it is at least abreast of that of any country in the world-we think it is, perhaps, a little more than abreast, because the judges of Canada stand in a category peculiar to themselves. They are recognized wherever they are known as men of integrity, of painstaking habits and great capacity, and certainly they are deserving of much larger compensation than they receive. It is a matter of fact now that it is impossible, when vacancies arise, to select men in the first rank of the profession. It is important that such men should be chosen, men who are familiar with the events of the day, because the character of the business that is now before the courts differs greatly from that which came before the courts some years ago. The cases are becoming more intricate and complicated, much larger sums are involved, and more important matters come up than had to be dealt with in the early history of this country, but the salaries have not kept pace with the character of the business. It is a very great mistake in any community to underpay or undervalue the services of the judges. They are the most important men in the community. They are the men who decideject. I am quite sure that I express the all our disputes of the highest character, cases involving hundreds of thousands of dollars. It is left to them, and it is a matter of the highest consequence, when vacancies occur, that men in the first rank of the profession, who are in the swim of the business of the country, should be selected to fill them. I will not mention names, but a dozen names must occur to anyone familiar with the profession, especially in the two larger provinces of Ontario and Quebec, of gentlemen who would not accept a position on the bench with the salaries attached to them at present. I have in my mind's eye a gentleman who has been frequently offered the highest position on the bench, but he says: "No; my income is three times larger than the salary; why should I present my services to the country? I can make fifteen to twenty thousand dollars a year and not work as hard as the judges do." I know several men in the profession in Ontario who can make that amount, and who, if asked to take a seat on the bench, Hon. Mr. Allan-I should like to add a few words to what has been said on this sub opinion, not merely of the members of the profession in Ontario, but of very large numbers of laymen, who think that the present salaries of judges of the Superior Courts are altogether inadequate. My hon. friend here has spoken of the necessity of the judges keeping up a certain social state befitting their position, but it would be an absurdity for them to attempt anything of the kind. In the present condition of things, I know, and I think I can speak with some degree of certainty on the matter, that the great majority of our judges, unless they have private means, would find it impossible to entertain or show that hospitality befitting their position. Besides, everyone knows that in the last few years the cost of living has greatly increased and is out of all proportion to what it was when compared with the salaries of judges 25 years ago. I can confirm also what has been said by the hon. member from Ottawa, and it is a fact of which we in Ontario are all perfectly aware, that many gentlemen |