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and roses, and on the acres of white shirt bosoms, and black coats and gleaming slippers, and correct white ties. All this refinement and elegance turned so interestedly towards the platform upon which, flanked by the Chief Justice of Canada and the lieutenant-governor of Manitoba, Lord Buckmaster of England was standing making his address.

He is a man of medium height; and lean. He has a lean face; high cheek bones, hollow cheeks, an aquiline nose, deep-set blue eyes, and an earnestness of manner that reaches the quality of solemnity. As he begins to speak he twists a gold ring on his left hand, he twists it rapidly, eagerly; it is the sole indication of nervousness he displays. He speaks with an admirable, clear, and easily heard voice, which never falters, which speaks admirable, choicely-arranged, finely-inflected language. His evening clothes and white vest and ribbon tie are no appropriate garments for this visage and this utterance. You look at him through half-closed eyes in the hazy light of the big room and you see him, dimly, in scarlet robes, seated on his woolsack, in his Chancellor's chair, the wings of his grey wig framing the falcon face, intensifying the solemnity of his look and investing it with terror. The law; the majesty of the law; the stern, wise, incorruptible arbiter; there it all is; you are beginning to listen; you have been merely looking at him, but now phrases begin to come_“ the superb and final destiny of Canada ;” “nature never forgives weakness or mistakes;" “without the influence of the law can you make a group of sheds into a great city;" there is force, precision, care, in each syllable; not a slip, not a tremor, not a hesitancy; he finishes his preliminary opening, puts on a pair of heavy-rimmed, thick-stemmed spectacles, and moves into the main section of his address.


He begins by quoting William Hazlitt. He reads from a small red book. He puts the book down, and with animation proceeds to demolish Hazlitt and the moribund Georgians, who thought“ that everything had been done, that the world was grown old, that no hope remained of doing anything better than it had been done then”-a hundred years ago.

He moves forward to the demolition of Hazlitt's doctrine through a series of illustrative examples—In past time the courts were seats of corruption; crazy sinecure appointments filled the whole of the chan

He refers to the Duke of St. Alban's; he remembers that James II., of pious memory, vested in Eleanor Gwyn the revenues of St. Alban's, and that one of Nelly's sons took the title; Nell as the

cery division.

Senior Registrar of Chancery—(“a most august if rather dry position") brings a glow of animation into the sombre eyes. While manifest absurdities were rampant some of the very greatest of the English judges were on the bench and saw no need for reform. Now, why was that? Lord Buckmaster has become very animated, he thrusts out strongly with his hand: “now, why was it they couldn't see the need for reform ?-It was because you cannot see what lies at your feet--the past and the future you can look at clearly—but not at the present—" there is a haze of dust that lies at the flying feet of the years." The beautiful phrase rings out with the music of a well rung golden coin.

His speech is woven of such language-“hopes, anxiety, suspense, hazard”-of the litigant who seeks the remedy of law; there is a “sound of rising waters and rushing of mighty winds," from the new forces which are vibrating under our established old foundations. The world is not old; he throws away the foolish suggestion and brings to his aid the language of inspiration—“the world is as new to-day as it was when the sons of the morning sang together for joy.” All this and much more is having the most powerful effect on the beautiful blue and white silk gowns, on the snowy shirt fronts, on our local jurists and judiciary. Lawyers the guardians of liberty-pioneers of truth; imperium et libertas; empire and liberty; freedom and

power: nobler and better system and edifice of law will be handed on to our successors—“ when we are only portions of its forgotten dust.” And the perfectly first-class audience surges to its feet-silks, plumes, fans, broadcloth, linen, patent leather, everything, and gives three loud and rousing cheers; and a tiger. The address is done.

We would not have missed Lord Buckmaster's magnificent speech for a great deal; and we would not have missed seeing him at all."


T. B. R.


In his speech at the annual dinner of the Ontario Bar Association, reported in the June number of the REVIEW, Mr. Justice Duff quoted the opinions of 'the cynical Lord Westbury' with regard to some of his contemporaries, but said nothing of their opinions of him. What these were likely to have been may be inferred from an article in the Empire Review for July by Lord Birkenhead, containing an appreciation of his famous predecessor, an estimate of his powers, an account of his achievements at the Bar, on the Bench and in politics, and anecdotes illustrative of his temper, manners and caustic speech. The reviewer has special reasons for being interested in Richard Bethell, for both were educated at Wadham College, Oxford; both won scholarships there, both won the Vinerian Scholarship, and both eventually reached the woolsack.

Bethell was accustomed to make disparaging remarks about the prominent men of the day, in entire disregard of their feelings and of the resentment they were likely to harbour in consequence. Thus, of Lord Hatherley he said that his mediocrity was "unrelieved by a single failing.” This sounds like an anticipation of the saying about Gladstone attributed to Disraeli, that he had not a single redeeming vice. Of V. C. Malins he observed, “What a fatal gift is fluency !” and of Lord Truro, “ If we had a man capable of understanding the most elementary questions of law or equity, there might be some hope of ending the case.”

There is a story to be found in Roscoe's "Growth of English Law” which Lord Birkenhead does not quote, but which affords an excellent example of Bethell's mordant wit. When Rolfe, Lord Cranworth, a rather commonplace personage, became Lord Chancellor in 1852, he continued to attend the sittings of the new Court of Appeal, though not an experienced equity lawyer. “I wonder," someone said to Bethell, “why old Cranny always sits with the Lords Justices." “I take it to arise from a childish indisposition to be left in the dark,” was the gracious reply.

Sayings of this kind are not forgotten. They made for their author a host of enemies and contributed to his downfall. If any sighs were uttered on the announcement of his death, they must have been sighs of relief. “Multis bonis flebilis ” was not the epitaph for Westbury.



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APPEALS IN CRIMINAL CASES.—The Home Bank criminal cases against the directors should direct attention to the curious and certainly extraordinary omission in the sections of the Criminal Code giving an appeal to those convicted on indictment.

They were evidently copied from the English statute, but what was overlooked was that in England no one is tried on indictment without a jury, except in certain minor cases where the accused consents to summary trial before a magistrate, subject to an appeal to Quarter Sessions.

In the English statute, as in ours, provision is made for what the Appeal Court can do when a jury has convicted. There the Court can only set the verdict aside if it is “unreasonable or cannot be supported having regard to the evidence.”

But where a judge alone tries the prisoner then relief is limited to cases where he has given a wrong decision on any question of law or if there is a miscarriage of justice. This last provision has been held in England to relate to matters as involve merely the regularity or fairness of the trial. But where, in Canada, the County Judge in his Criminal Court, tries the large majority of indictable offences, there is no provision for cases where he draws wrong conclusions from the proved facts, or finds the facts wrongly and then convicts.

It is said that the Canadian statute was introduced into the Senate, and passed the Commons during the temporary absence of the permanent head of the Justice Department-hence the difference in English and Canadian conditions was not noticed or provi

It is only by stretching the words“ miscarriage of justice” that the Appeal Court can, in most cases arrive at a conclusion opposed to that of the County Judge or Magistrate. Is this matter not worthy of attention by the authorities?

F. E. H.

vided for

BONDHOLDER—VOTE INFLUENCED BY - BENEFIT RECEIVED. — The case of O'Brien v. British American Nickel Corporation & National Trust Co. decided on 25th September, 1925, by the First Divisional Court of the Supreme Court of Ontario, involves a very important point. Under a Bond mortgage the majority had the right by reso

lution to modify, compromise, or alter the rights of the bondholders. A scheme was approved which had this effect. It was alleged that a large bondholder whose assent was essential to secure a majority, received benefits which influenced his vote and that he had not exercised his power bona fide. Two principles were enumerated. First, that North-West Transportation Co. v. Beatty,' puts it beyond question that mere personal interest or benefit accruing to the shareholder, or one or more of the majority of a class, in addition to or differing from the benefits accruing to the minority, does not disqualify or affect the vote unless it be established and found that the benefiting members of the class did not honestly, and in fact, believe the transaction authorized or approved by the majority to be in the interests of the corporation whose action they by their votes controlled, or of the class for whose benefit or protection they were enfranchised. See Goodfellow v. Nelson Line (Liverpool) Ltd.?

Secondly, that, notwithstanding that the bondholder in question was not actuated by the benefits he received, but rather because he felt that a refusal to approve of the scheme would result in serious loss to the creditors, and that, on the other hand, to secure its acceptance would probably give the debtor company and its creditors more generous treatment. The Court was of opinion that such an exercise of the franchise, looked at from the point of view of the minority bondholder, was improper in that it conflicted with the duty to him, irrespective of what may have been the motive or influence which induced it. The duties, powers or obligations of a majority in voting to bind a minority have been discussed and considered in many cases. The view of Lord Cairns in Ex parte Cowen, is quoted to this effect.

“But even without any ingredient of fraud, if the creditors, from motives of charity and benevolence, which might be highly honourable to them, were willing to give the debtor a discharge on payment of a composition wholly disproportioned to his assets, that would not be such a bargain as the Act requires, and would not bind the non-assenting minority.”

This is in line with the opinion of Astbury, J., in Brown v. British Abrasive Wheel Co.,' that such a power, as was here in question, “ must be exercised subject to those general principles of law and equity applicable to all powers enabling majorities to bind minorities, and its exercise must be bona fide for the benefit of the company as a whole.”

F. E. H.

11887. 12 A. C. 599.
2 (1912) 2 Chy. 324.
* L. R. 2 Ch. App. 563.
1919, W. N. 74.

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