It will be seen that this was an open attempt to subject the Court of Chancery to the supervision of the Court of Queen's Bench-to make the Court of Chancery an inferior Court, just as Coke had tried to do three centuries before in England. The motion was made before the full Court of Queen's Bench by Mr. Robert Easton Burns, the head of the eminent Chancery firm of Burns, Mowat and VanKoughnet -a Rule Nisi was granted -after the argument of the Rule the Court considered that it was incumbent upon them to grant the writ of prohibition." Thereupon CounVice very angry and indignant on the subject. I would not wonder to see the two Courts in collision before the affair ends." (The "Master" was John Godfrey Spragge. Mr. Turner was a very prominent chancery practitioner.)

66

Mowat had not a high opinion of Jameson; in a letter to his brother, John, dated at Toronto, June 12, 1844, he says: 'Yesterday's story was that Judge Hagerman was asleep on the Bench for about two hours in the afternoon; nobody seemed to regret the loss which clients were sustaining on this account. Another Court is presided over by a Judge, whom universal scandal declares to be always in a state of mental sleep." Read in his "Lives of the Judges," Toronto, 1888, at p. 195, says: "The Vice-Chancellor. Was a great stickler for precedents, not given to striking out in new paths or venturing to establish a principle unfortified by past authority. A friend of mine who knew the Vice-Chancellor well says that Mr. Jameson told him that he thought the principal duty of a Judge was to follow precedent."

9

Burns the same year became Judge of the Home District Court (Toronto), and in 1850 he was raised to the Bench of the Court of Queen's Bench; he died in Toronto in 1863. (Sir) Oliver Mowat became Vice-Chancellor 1864. and remained in that position until be resigned to become Prime Minister of Ontario; Philip M. S. S. Vankoughnet became Chancellor in 1862, and remained such until his early death in 1869.

10 The practice in those days was to apply to the Comt for a "Rule Nisi," i.e., an order or summons to the other side to show cause why the desired order should not be made. The Rule Nisi was served on the opposing party, and upon the day set the matter was argued. The mere granting of a Rule Nisi was considered to indicate that the applicant had made out a prima facie and rather more than an arguable case, consequently the opposing party was called upon to open the argument by shewing cause why the order should not be made.

"The case was argued in Trinity Term, 8 Vic.. Saturday, November 16, 1844, before the Chief Justice Robinson and Jones and Hagerman, JJ. "In re Mittleberger

V.

Merritt.

Argued by H. J. Boulton and Esten for Defendant; by Burns and Blake for Plaintiff.

Henry John Boulton was at this time no longer a Law Officer of the Crown: he had been Chief Justice of Newfoundland for five years, and had returned to Canada and again entered public life. James C. Palmer Esten was born in Bermuda; he came to Toronto in 1836, and

sel opposing the Rule, Mr. Robert Baldwin Sullivan," who had recently left the Government and resumed his practice of law in Toronto, urged that the creditor should be directed "to declare according to the practice of the Court "-in other words to set out his case in a formal pleading, a "declaration," which could be formally pleaded to and the question regularly tried out.

joined the Bar in 1838; he did not become a solicitor. On the reorganization of the Court of Chancery in 1849, he was appointed a ViceChancellor; he survived until 1864.

William Hume Blake, the father of the Honourable Edward and Samuel Hume Blake, was the first professional Chancellor of Upper Canada, 1849; he lived until 1870, but had resigned his office some eight years before; he was appointed a Judge of Appeal in 1864, which office he held until his death. He was an Irishman of good education and great ability; he came to Upper Canada to farm, but soon wearied of the monotony and drudgery of primitive colonial country life and joined the Bar. His judgments are entitled to respect. but from changed circumstances and practice they are now little quoted. It is to him in great measure that we owe the reorganization of the Court of Chancery in 1849. Of course, when he accepted the Chancellorship the inevitable accusation was made that he had provided a lucrative position for himself; nothing can better indicate the changed conditions of life than the fact that the position of a Judge was then considered a financial prize. Quantum mutatum!

The decision was announced on the opening day of the succeeding Term.

12 Robert Baldwin Sullivan, a brilliant, able and well educated Irishman, had come to Upper Canada with his father in 1819, at the instance of his uncle, Dr. William Warren Baldwin, in whose office he afterwards studied law. He practised for a time in Vittoria, but soon his conspicuous talents sent him to the capital where he joined his uncle's firm. He became mayor and later a Member of Parliament and of the Administration. Oliver Mowat in a letter to his brother, Toronto. February 6, 1844, says of him: "He is said to have forsworn polities forever," and adds somewhat cynically, "I am not quite sure but all political men have forsaken him and I learned the other day that the late (Legislative) Council would willingly have got rid of him if they could, able and zealous as he was . . Of course, nobody fancies he has any political principles." Mowat further says: Sullivan has joined the total abstinence Society here. He is said to have made an experiment of three weeks' abstinence before he joined the Society." In those days anyone who did not drink, at least in moderation, was apt to be considered a hypocrite or a weakling. Sullivan was neither, and his becoming a teetotaler was a seven days' wonder. "With his brilliant talents he must succeed

"Mr.

I believe he has not got a single suit or a single brief yet, but he is rubbing up his legal knowledge and laying in a stock of equity knowledge so that his leisure is not idleness."

Sullivan was made a Justice of the Court of Queen's Bench in 1848 and transferred to the Common Pleas in 1850; he died in 1853, at the age of 51. While never a Chief Justice himself he was the father-in-law of three Chief Justices, Thomas Moss, Sir Charles Moss and Sir Glenholme Falconbridge.

The Court acceded to this and the petitioning credi tor was directed to declare;13 this he did and he demanded a plea in answer. Notwithstanding the opinion of the Court of Queen's Bench the Vice-Chancellor made an order superseding the Commission of Bankruptcy, and the stage seemed all set for a direct contest between the Courts for supremacy.

14

Then occurred one of those accidents which are always coming to pass to prevent the determination of "nice points of law"-Mittleberger was found in the course of litigation not to be a creditor of Merritt and Scott. Consequently there was no longer any occasion for pressing the prohibition or any motive for opposing it. The defendant in prohibition, i.e., the firm of Merritt and Scott, applied to the Court of Queen's Bench for an order staying all further proceedings as they were willing to submit to prohibition. Of course the real object of the motion was to avoid the payment of costs since it was obvious that the Court of Queen's Bench must hold for the plaintiff. It is probable that the motion of Sullivan would have succeeded but for the conduct of the alleged debtors in having the Commission of Bankruptcy set aside by the Vice-Chancellor in the face of the expressed opinion of the Court of Queen's Bench. More than a century before in the King's Bench in England, before Chief Justice Sir William Lee and his fellows, a defendant had succeeded in staying all proceedings without costs on expressing his willingness to submit-the Court has said that the direction to declare was in favour of the defendant and he might waive it.15

But in this case the defendant had not submitted to prohibition when the direction was given to declare and consequently the Court of Queen's Bench could successfully distinguish the two cases.

13 Prohibition was one of the small number of actions in which the defendant was at the common law entitled to "make up and enter the issue," as he was considered an actor; the other actions in which the defendant had the like privilege were replevin and quare impedit.

14 See the report in Re Merritt et al. (1844), 1 U. Can. Jur. 283. 15 See the report in Sir John Strange's Reports of Gegge v. Jones (1740), 2 Str. 1149.

Blake and VanKoughnet contended that the creditor had the right to proceed with the action in prohibition not only for the costs which he would undoubtedly obtain, but also for substantial damages for the expense he had been put to by the proceedings which he claimed were illegal. The Court expressed doubt of the plaintiff being entitled in such an action to substantial damages as only one shilling was given in such actions-but refused to stay the action except on payment of costs of any proceedings taken by the defendant after the opinion of the Court had been given in favour of the prohibition.16

Probably the costs were paid, as nothing further appears of the case.

The Common Law Court thus effectually asserted its superiority to the Court of Chancery; but the Court of Chancery never admitted its inferior position.

The matter is now of only antiquarian interest.

16 The Rule Nisi was obtained by Sullivan in Easter Term. 8 & 9 Vic., Wednesday, June 11, 1845.

This indicates that the Rule Nisi was argued upon that day. The report of the arguments and judgment will be found in the Queen V. The Vice-Chancellor of Upper Canada (1845), 2 U. C. R. 92. The main case of Mittleberger V. Merritt, in which the liability of Merritt and Scott was considered, is reported in 1 U. C. R. 330.

WILLIAM RENWICK RIDDELL.

LEGAL ETHICS.

AN ADDRESS BY CHIEF JUSTICE MATHERS, MANITOBA.*

Early in the nineteenth century David Hoffman of Baltimore prepared a list of fifty resolutions for the adoption of students upon admission to the Bar. Resolution forty-eight says:—

"The ill success of many at the Bar is owing to the fact that their business is not their pleasure. Nothing can be more unfortunate than this state of mind. The world is too full of penetration not to perceive it and much of our discourteous manner to clients, to Courts, to juries, and counsel has its source in this defect. I am therefore resolved to cultivate a passion for my profession or after a reasonable exertion therein without success to abandon it. But I will previously bear in mind that he who abandons any profession will scarcely find another to suit him. The defect is in himself. He has not performed his duty and has failed in resolutions, perhaps often made, to retrieve lost time. The want of firmness can give no promise of success in any vocation."

In that resolution Mr. Hoffman struck the keynote. of success in the legal profession and of ethical conduct therein. The member of the Bar who has real liking of his profession as such apart from its usefulness as a means of earning a livelihood, and has a knowledge of its history, customs, and traditions, will as a rule find his own ethical instincts a sufficient guide to right conduct in almost any circumstances; and the great majority of the members of the profession are admitted to practise as solicitors or called to the Bar and launched upon their respective careers with no other guide.

*EDITOR'S NOTE.-This was an address delivered by the Hon. T. G. Mathers, Chief Justice of the Court of King's Bench of Manitoba, to the Manitoba Bar Association in May last; and as it was the text and embodies the substance of his address at the recent Annual Meeting of the Canadian Bar Association at Ottawa, we avail ourselves of the privilege of reproducing it in the C. L. T. for the edification of the large body of Barristers who were unable to hear it delivered by the Chief Justice himself.

It is hardly necessary to say it reflects the highest and purest ideals of the ethics of the Legal Profession.

B. T.