NOTES.

LANDLORD'S RIGHTS TO DISTRESS.-(1924) 1 W.W.R. pp. 12331243 contains an elaborate and instructive case on the rights a mortgagee acting as landlord may cull for himself. The case is Jorgenson v. Engelstad, on appeal to the Appeal Court of Saskatchewan. Both sides (and the Sheriff) appear to have made error after error, and the judgment seems to show that the plaintiff in winning on the appeal was lucky enough to win on his own error.

An important point was an interpretation of the judgment in Fawell v. Andrew.1 In Fawell's case the mortgagee had raised action on the covenants, then as landlord had done distress, and, while that distress was still current, had taken judgment for the whole debt. This original judgment was on appeal unanimously upset: Andrew should not have pursued concurrently his ordinary remedies of suit, etc., and the extraordinary remedy of distress. A hasty reading might lead to the conclusion that as long as the distress lasted the mortgagee had no right to sue. Now however the learned Chief Justice of Saskatchewan emphasises that Fawell failed only because he entered judgment for his whole claim, whereas had he been content to enter judgment for a part (deducting the sum probably to be received from the distress) he would have been safe. None of the other Judges refer to this point. Unfortunately three of the four Appeal Judges wrote opinions, and these do not on all tallies agree.

From the Jorgenson decision a rather awkward rule emerges, which may be stated thus: I am a landlord. My tenant Canuck is indebted to Eaton. Eaton sues, and. per the Sheriff, seizes Canuck's auto. The auto, of course, even if left in Canuck's garage, comes into the custody of the law. I give notice to Sheriff that I claim as a priority $200 rent. Thinking to be astute, I do this by placing in the Sheriff's hands a general distress warrant covering, inter alia, the said car.

Then the Sheriff and Eaton get to loggerheads. Sheriff demands that Eaton should pay my rent before the car is auctioned. Eaton, fearing the car is not worth that much, refuses. There results an impasse. Sheriff cannot sell the auto on Eaton's execution, because it is impounded for my benefit. He cannot sell it on my warrant, for that warrant is no warrant but merely a notice., Sheriff must formally release the auto. Then, if I am informed in time, I can make a good

110 Sask. L.R. 162; (1917) 2 W.W.R. 400.

seizure of the car on a new distress, and ensure my rent. But I may very readily find that Canuck has made good his interval and spirited the car beyond the reach of Sheriff, Eaton or me.

An inconvenient result surely!

*

G. C. T.

ONTARIO COUNTY COURT JUDGES.-Section 28 of "The Judges' Act," R.S.C. 1906. Cap. 138, provides as follows: "Every judge of a county court in any of the provinces of Canada shall, subject to the provisions of this Act, hold office during good behaviour, and his residence within the county or union of counties for which the court is established.”

Chapter 58 of R.S.O. 1914, known as "The County Judges' Act," contains the following section:

"8. Every judge and junior judge of a county or district court shall reside within the county or district for which he is appointed, unless otherwise provided by Order in Council."

The words "unless otherwise provided by order in council," were added in 1911, and they presumably meant action by the LieutenantGovernor in Council. The constitutionality of this amendment came up incidentally in the House of Commons on May 16th, 1914, on the discussion of a Bill introduced by the Minister of Justice, to amend The Judges' Act. A member referred to the fact that the County Court Judge of his county resided in an adjoining county under the alleged authority of such an order in council, and the Minister promised to look into the fact. The Bill was afterwards withdrawn, and apparently this question was allowed to drop.

In 1919 the Ontario Legislature passed an Act authorizing the Lieutenant-Governor in Council to form two or more counties in Ontario into a County Court District, and provided that all the Judges in any such district should have similar jurisdiction throughout the counties thus grouped. It was found however in some cases, that it became inconvenient for Judges to continue to reside in the counties to which they had been respectively appointed. The most striking example of this difficulty has arisen from the grouping of the County of Carleton with the United Counties of Prescott and Russell. Since the death of the late Judge MacTavish, the County of Carleton has had only one Judge, although its right to a junior Judge which was taken away in 1919, was restored by the Ontario Legislature in 1921. These United Counties still have two Judges, although the judicial work there is probably not one twentieth of that in the other county. The result has been that one or other of these two Judges is continually sitting in Ottawa, and occasionally both of them are on duty there at the same time. It had been sug

gested that the junior Judge in Prescott and Russell should be permanently transferred to Ottawa as junior Judge of Carleton, so as to avoid travelling to and from his residence in L'Orignal. The Federal Parliament has however adopted another solution of the difficulty, by passing the following amendment to the Judges' Act:

"1. Section twenty-eight of the Judges' Act, chapter one hundred and thirty-eight of the Revised Statutes of Canada, 1906, is amended by adding to subsection one of the said section the following paragraph:

"Provided, however, that any Judge of the County or District Court of the Province of Ontario may reside at any place, within the County Court District established pursuant to the County Judges Act, 1919, of that Province, authorized or approved by the Governor in Council."

This will permit the Government, in the particular case in question, to authorize either or even both of the Judges of Prescott and Russell to reside permanently in Ottawa. Probably this legislation will be utilized also in the case of Manitoulin, which is grouped with Sudbury, and which has very little legal business; and possibly in other places in the Province.

Although the actual legislation proposed and passed was confined to this one question, the debate assumed a very wide range. One of the numerous questions discussed was the inability of the six County Judges at present in the County of York to perform all the work there, without calling in Judges from outside counties. Strange to say, however, the only remedy suggested by the members from Toronto and York who took part in the debate, was the increasing of the salaries of these six Judges. One would have thought that the simple and logical course would be to ask the Ontario Legislature to provide for an increase of Judges in that County, and then to request the Dominion Government to fill these new vacancies.

M. J. G.

BOOKS AND PERIODICALS.

Publishers desiring reviews or notices of Books and Periodicals must send copies of the same to the Editor, care of THE CARSWELL COMPANY, LIMITED, 145 Adelaide Street West, Toronto, Canada.

Ringwood's Outlines of the Law of Torts. 5th Edition. By C. H. Ziegler, LL.M., Lecturer in Law at Pembroke College, Cambridge, and of the Inner Temple, Barrister-at-Law, London: Sweet and Maxwell, Limited, 1924, pp. xxviii.+356.

This little book, the popularity of which is proven by its having reached its fifth edition, is based upon a course of lectures delivered before the students at the Law Institution in London, some years ago, and it has been brought down to date by the present Editor. The subject of Torts is of course too large a one to be dealt with exhaustively in a volume of this size, but the author has condensed a large amount of practical information within the limits of his book. The subject is dealt with in eleven chapters under the following heads:-Introductory-Torts Generally; Who are liable for Torts; Damages in Actions for Torts; Limitation of Actions for Torts; Torts to the Person; Malicious Injuries; Torts in Respect of Family and Domestic Relations; Torts to Property; Negligence; Fraud or Deceit; and Slander and Libel.

It would not be practicable in the circumstances, to make an extensive review of this book, but the writer may be allowed to deal with one important difference between the English law, as laid down in it, and the law in Ontario. This results from the fact that, while the House of Lords is the highest appellate tribunal from the English Courts, the Judicial Committee of the Privy Council occupies the same position with regard to the Courts of the Dominions and Colonies. In 1887 the Judicial Committee heard an appeal from Australia, in the case of Victorian Railway Commissioners v. Coultas, which is reported in 13 Appeal Cases at page 222. Briefly put, the decision, which reversed that of the Supreme Court of Victoria, was that damages for "mental shock" were not recoverable, when unaccompanied by any actual physical injury.

This was followed here in Henderson v. Canada Atlantic Ry. Co. (1898) 24 A. R. 437. An appeal was taken in that case to the Supreme Court (see 29 S. C. R. 632) on another point, but this question was not raised on that appeal. These two cases were subsequently followed by a Divisional Court in 1905, in the case of Geiger v. Grank Trunk Ry. Co. (1905) 10 O. L. R. 511. Mr. Justice Teetzel at the trial, attempted to distinguish the two last mentioned cases, and relied on the then recent English decision in Dulieu v. White, (1901) 2 K. B. 669, in which the Victorian Railway case was discussed and not followed. His decision was, however, reversed by the Divisional Court, which held that the two cases firstly above referred to were not distinguishable, and were therefore binding on our Courts.

Then came the decision of our Court of Appeal in Toms v. Toronto Ry. Co., (1910) 22 O. L. R. 204, in which all the three cases above mentioned were distinguished, on the ground that in this case, there was physical as well as mental shock; and the judgment was upheld by the Supreme Court of Canada, (see 44 S. C. R. 268). The Privy Council decision has also been distinguished and even doubted in New Brunswick, in the case

of Kirkpatrick v. Canadian Pacific Ry. Co., (1902) 35 N. B. R. at page 603. See also the recent decision of the Saskatchewan Court of Appeal in Hogan v. City of Regina, noted in the June number of this Review, at page 422. One feels that our Courts have latterly shown considerable judicial ingenuity in arriving by a roundabout way, at the same practical result as that reached by the Courts in England. Of course the Privy Council decision will still have to be followed here, in cases that cannot possibly be distinguished from it.

The author at page 38, states that the rule laid down in Merryweather V. Niran, that where one or two joint tortfeasors is sued and pays the whole of the damages, he has no right of contribution or indemnity from the other, if he knew, when committing the act for which he was sued, that it was unlawful. Two exceptions to this rule are noted, as having been made by the Directors Liability Act, 1890, and the Maritime Conventions Act, 1911. To these should be added in Ontario, the exception made by Section 464 of the Municipal Act, in certain actions against Municipal Corporations. The writer understands that similar legislation exists in the Western Provinces, and also under the Civil Code of Quebec, by Action in Warranty.

There is also some difference between the law of England and that of some of the Provinces of Canada, as to the liability of a husband for the antenuptial and postnuptial torts of his wife. For instance in Ontario, British Columbia and New Brunswick, the same rule is applicable to both kinds of torts. As this book will naturally make its principal appeal to students, it is important that they should be cautioned to read it, subject to the statutory as well as judicial distinctions in the law that exist between the two countries. M. J. G.

Chambers' Encyclopaedia. A Dictionary of Universal Knowledge. New Edition, edited by David Patrick, M.A., LL.D., and William Geddie, M.A., B.Sc. Volume IV. (Dioptrics to Freistadtl.) London and Edinburgh: W. & R. Chambers, Limited, 1924.

Among the more important articles in the fourth volume of the new Chambers' are Electricity by Professor C. G. Knott, Fairs by Sheriff Irvine, Fabianism by George Bernard Shaw, Forgery by Sir A. Wood Renton and Free Trade by Professor J. S. Nicholson. As would be expected these distinguished writers have furnished forth information of great value concerning the subjects of which they treat. France is dealt with by such eminent authorities as Prince Kropotkin and M. Roget, their work being revised and brought down to date by Mr. J. L. Geddie. There is an excellent map of the country, showing the enlargement of territory due to the Great War. Professor Patrick Geddes writes luminously of Evolution in its several aspects, pointing out with equal candor the achievements and failures that have marked the keen exploitation of the theory in the various sciences since the middle of the nineteenth century. Another very important article is that on Education by Professor John Adams. He observes that "the final aim of all education is the self-realisation of the individual. . . . It is for metaphysicians and psychologists to discuss the possibility and nature of a self; the educator is entitled to assume its existence and to busy himself about its development." The volume as a whole is of uncommon value. C. M.