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for the balance, on the ground that he had not occupied the premises since that date.

The relevant facts as found were as follows: The assignor's stock was sold by auction on August 9th, and was removed by the purchaser a few days later. The keys had been given to the purchaser by the trustee, with instructions to hand them over to the assignor. The latter at the trial denied having received them, and apparently the trustee took no steps with regard to the premises until the end of November, when the landlord inquired what his intentions were as to the lease. The trustee answered that he had no further need of the premises.

In these circumstances the court held the petitioner entitled to the rent claimed, but in view of the trustee's negligence in not giving notice, for which, the judge remarked, the creditors should not suffer, the trustee was condemned personally.

Incidentally, the court pointed out that the claim should have been made by way of motion, under rule 14, and not by way of petition.

Strikes-Picketing-InjunctionDamages. Acting Chief Justice Martin, in Dame Hannah Bercovitch et al. v. The Joint Board of the Cloak and Suit Makers' Union of Montreal et al. (S. C. 2841, judgment April 27, 1923), followed the principle laid down by the Court of Appeal in International Garment Workers' Union v. Rother (34 K. B. 69 and 1 CANADIAN BAR REVIEW 273). The plaintiffs carried on business in the same building under the name of the Empire

ent Company and the Montreal Garment Company, respectively, the former being a union shop and the latter not. The defendants were the joint Board of the Cloak and Suit Makers' Union of Montreal, an unincorporated association, and three officers of the Board as well personally as in their quality as officers.

A strike of the employees of the Empire Company took place in January, 1923, and there was picketing and considerable disorder for several days in the neighborhood of plaintiffs' premises. The latter took action, asking for injunction and damages. It was established that the three officers of the Board took part personally in the picketing, that insult and threats were made by the picketers, that many of the employees had reasonable grounds to fear for their personal safety and that customers were prevented from obtaining peaceful access to the premises.

The right to strike was not questioned by the trial Judge, but following the Rother case above mentioned he held that, as the purpose and effect of the defendants' action was to prevent others from working for plaintiffs and to prevent customers from reaching the premises, an actionable wrong had been committed. Accordingly, the interim injunction previously granted was maintained, the Board was condemned in $200 damages, and the defendants were jointly and severally condemned to pay the costs of the proceedings.

0. S. T.


Evidence Dying declaration - Admissibility - Question for

Court or jury.

In Rex v. Christensen (No.2), the Appellate Division of the Supreme Court of Alberta had to deal with a case where, in a prosecution for homicide, a dying declaration of the victim was offered in evidence. It was held by the Appellate Division that while the Judge had a preliminary duty to decide whether the victim was conscious of impending death as a pre-requisite to admitting the declaration, the ultimate duty devolved upon the jury to decide the real belief of the deceased, and they should be instructed to reject the declaration if they decided the necessary condition of mind did not exist. See the report of the case in (1923), 1 W. W. R. 1307.

The entire weight of English authority is opposed to the decision in the principal case. It is true that in Woodcock's Case (1789) Leach Cr. L. (4th ed.) 500, Eyre, C.B., left the question to the jury, but in the case of Thomas John, charged with murder "the Judges. at a conference in Easter Term, 1790, all agreed, that it ought not to be left to the jury to say whether the deceased thought she was dying or not; for that must be decided by the Judge before he receives the evidence," 1 East, Pleas of the Crown, 357-378. See also R. v. Hucks (1816), 1 Starkie 523, in which Lord Ellenborough says: “In this, as in many other cases, the question is one exclusively for the consideration of the Court, as, for instance, where a declaration has been made by a party in articulo mortis, whether under all the surrounding circumstances the declaration is admissible in evidence. This point was considered by the Judges here, on a question proposed to them by the Judges in Ireland, who entertained doubts upon the subject, and this was their unanimous opinion;" and a similar statement is made by Parke, B., in Bartlett v. Smith (1843), 11 M. & W. 486. The English textbooks approve these cases: Roscoe's Crim. Evid. (14th ed.) 31, Taylor on Evidence (11th ed.) 26. The Canadian authorities are in accord: R. v. Wood (1897), 5 B. C. 585; R. v. Aho (1904), 11 B. C. R. 114. And see R. v. Inkster (1915), 8 Sask. 233.

The great weight of American authority is also that the question is one for the Judge alone: Commonwealth v. Bishop (1896), 165 Mass. 148; People v. Smith (1887), 104 N. Y. 491; Coyle v. Commonwealth (1906), 122 Ky. 781; (the Judge alone passes on admissibility) State v. Zorn (1907), 202 Mo. 12; (“the jury have absolutely nothing to do with their admissibility”) State v. Monich (1906), 74 N. J. L. 522 (“In our opinion the question admits of but one answer

[the condition of admissibility) is not reviewable by the jury”). See also Wigmore on Evidence, sec. 1451, where these cases are approved. In fact, the only jurisdiction where the rule upheld by the principal case can be said to be established is the State of Georgia: Jackson v. State (1876), 56 Ga. 235; Jones v. State (1908), 130 Ga. 274. There are sporadic decisions in accord in Texas, California and Oregon.

The only authority cited in the principal case is Wigmore on Evidence, which the Court refuses to follow. It is on principle, apparently, and not on authority, that the case is meant to be decided, but it is submitted that on principle also the decision is unsound. There are always two questions in such cases, one of the admissibility of the evidence, the other of its weight. The invariable rule of English law is that the question of admissibility is exclusively one for the Judge: Taylor on Evidence, 11th ed., 2, 25; Phipson on Evidence, 6th ed., 11, 193. The weight or credence to be given the evidence admitted is, on the other hand, entirely for the jury: Taylor on Evidence, 11th ed., 2; Phipson on Evidence, 6th ed., 11. There is no reason for breaking through the rule in the case of dying declarations. No doubt the jury have the power to disregard the declaration as being of such slight value in view of the surrounding circumstances as not to be given any weight, just as they may reject it as being unworthy of belief. But that question is a totally different one

C.B.R.- VOL. 1.-34

from that of the admissibility of the evidence, which is for the Judge alone, and not for the jury.

The matter is sometimes obscured by the loose statement that all questions of law are for the Judge and all questions of fact for the jury. But, in fact, the decision of preliminary questions of fact on which the admissibility of evidence depends are always for the Judge, because it is believed that justice will be better attained by having them decided by the trained members of the tribunal than by the lay members. The Court in the principal case, however, confuses the two questions when it says:

“ There is no doubt about the law that the duty of the Judge is merely a preliminary one as to admissibility, and that after the dying declaration has been admitted it is still the duty of the jury to decide finally, as part of the process of weighing the testimony, whether the deceased was or was not in the condition of mind necessary to make the declaration admissible.”


And a few lines further down the Court formulates the rule which, it is submitted, is palpably unsound:

.. the Judge's decision on the fact had only been a preliminary one and

they were entitled to disregard his opinion and were in duty bound to decide the question of the real belief of the accused as to his condition quite independently for themselves, and to reject it if they decided that the necessary condition of mind did not in fact exist

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and the Court makes its meaning still clearer in the next paragraph:

“ The consideration that we may feel just as convinced as the trial Judge did that the deceased had no hope of recovery can have no bearing on the case. The whole question should have been squarely left to the jury. I do not think it can be said that this was done."

The question is analogous to that of the use which the jury may make of a confession. It has never been questioned in England that the voluntary nature of a confession, and consequently its admissibility in evidence, is solely for the Judge to decide. Taylor on Evidence, 11th ed., 25, citing Note (b) in (1816) 1 Starkie 523. In the latest cases on confessions, Ibrahim v. The King [1914] A. C. 599, R. v. Colpus, [1917] 12 Cr. App. Rep.

193, and R. v. Voisin, [1918] 1 K. B. 531, it is assumed without discussion that the Judge is the final authority on admissibility, and in none of these cases is there a suggestion that it is to be left to the jury. The weight of American authority is clearly in accord: Wigmore on Evidence, sec. 861.

For a discussion of the principle involved in the principle case and of the precedents, see V. H. Lane's article “ The Right of the Jury to review the Decision of the Court upon the Admissibility of Dying Declarations” (1903), 1 Michigan Law Review, 624.

J. T. H.

Contributory Negligence—Unjust enrichment —Civil Law


In Grand Trunk Pacific Ry. Co. v. Earl (1923), S.C.R. 397, an appeal from the appellate division of Alberta, the plaintiff was held disentitled to damages against the defendant company by reason of his own contributory negligence notwithstanding the negligence of the company. Three of the judges, namely, Duff, Anglin and Mignault, expressed regret that they could not apply the doctrine of the civil law by which in case of common fault the liability of each party is measured by his degree of culpability

Turgeon, J.A., was more fortunate in the case of Sumner v. Squires (1923), 2 W.W.R. 243, where he was able to adopt a principle of the civil law as the ground of his decision. The plaintiff had sold certain farm implements but without a contract in the form prescribed by The Farm Implement Act, a cash payment being made upon the price and notes given for the balance. The defendant, when sued on the notes, pleaded the want of form in the contract, and effect was given to this defence. Defendant was allowed to recover what he had paid on the price with interest at five per cent., the notes to be delivered up and cancelled. On the other hand, he was ordered to return the machinery, to compensate the vendor for its use and to pay for any culpable damage which he might have caused to it. The Judge said:

I think this is a proper case in which to apply a maxim of the civil law which has often been applied in some of the States of the United States, whose jurisprudence is founded upon the common law of England, as is the case with us. According to this maxim, it is our duty in adjusting matters

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