perties, and is refused to one co-plaintiff and granted to the other, the successful plaintiff is liable to pay the costs of the other who is unsuccessful. This is a strong authority to shew that in a joint action the liability to costs is not limited by the separate interests of the co-plaintiffs." C. M.

**

JURISDICTION AS AFFECTED BY UNQUALIFIED COUNSEL.-The case of Rex v. Wessell' is a striking example of the growing tendency of some Western Canadian Courts to take a highly artificial and strained view of the meaning of "jurisdiction." The point raised in this decision was a novel one, viz., whether a conviction by a stipendiary magistrate was void, because another magistrate of the county had acted as prosecuting counsel, contrary to the following statutory provision:

"No police or stipendiary magistrate shall act as solicitor, agent or counsel in any case, matter, prosecution or proceeding of a criminal nature, nor shall such Magistrate act as aforesaid in any case which by law may be investigated or tried before a Magistrate or a Justice. of the Peace."

On this sole ground, the conviction was held void, as made without jurisdiction.

Without any serious attempt to analyze what jurisdiction really means, it may be pointed out that the old synonym was conusance," and that in general the question of capacity is the basic one. That the capacity or judicial powers of a Court can be impaired or affected by the identity or qualifications of persons who appear before it as counsel is a startling proposition. For a decision to be without jurisdiction it must be coram non judice: Can a Judge be any the less' one because unqualified counsel appear before him? The Court in R. v. Wessell attempt to meet this difficulty by saying "in effect the magistrate is just as much prohibited from hearing a case in such circumstances as is the counsel-magistrate from appearing in it." But with all deference to that Court, there seems to be nothing in the section to justify this statement. And in any event, it seems highly controversial ground whether even such a meaning would affect jurisdiction.

If the decision is correct, some very peculiar results may follow. One attribute of jurisdiction is the power to make a binding decision either way: R. v Bradley, R. v. Nat. Bell Liquors Ltd., if then the

'1923, 3 W. W. R. 233.

270 L. T. 379 at 381.

(1922) 2 A. C. 128 at 152.

magistrate had no jurisdiction to convict, he had none to acquit. Sauce for the goose is sauce for the gander, but undoubtedly the defendant would have been severely shocked if he had been acquitted, and was then proceeded against de novo on the ground that this result was a nullity, as obtained through an incompetent tribunal. Yet this would be the logical result. Again, if jurisdiction was lost, at what stage was it lost? Was it gone as soon as the magistrate-counsel took any part whatever? If so, and the trial magistrate after hearing his opening for the Crown had learned of the section and insisted on substitution of other counsel for the prosecution, would his decision still have been bad? If good, his jurisdiction must have been restored in some mysterious way, and by his own act. The orthodox view has always been that jurisdiction can be conferred only by the Crown or by Statute: Mayor etc. of London v. Cox; yet here the magistrate would be conferring it upon himself.

It is submitted that such considerations show the treatment of what happened in R. v. Wessell as involving jurisdiction in any sense, is a misconception.

It was laid down in R. v. Bolton, and affirmed in the Nat. Bell case (supra), that: "the question of jurisdiction ... is determinable on the commencement, not on the conclusion of an inquiry, and affidavits to be receivable, must be directed to what appears at the former stage and not to the facts disclosed in the progress of the inquiry." Unless it could be suggested that the magistrate's jurisdiction did not attach until some competent counsel had appeared for the Crown, the theory adopted in R. v. Wessell, though not made clear, must be that jurisdiction had attached at some prior time, but was ' ousted by what occurred later. The only exception in English authority to the rule cited from R. v. Bolton is merely an apparent one, occurring when an issue arises in the course of a trial which is not within the classes of issues which the Court has power to decide. But this is because the Court never really had jurisdiction but only appeared to have until the real question it had to decide became clear. The rule in England, therefore, is that jurisdiction attaches if at all, at the commencement of proceedings, once for all. There have been many doctrines repugnant to this canvassed in Canada, some of which were given their quietus in the Nat. Bell case (supra). Until the orthodox rule is adhered to in its entirety the development of the law will bring forth many anomalies. D. M. G.

* R. v. Galway Judges, 1906, 2 I. R. 499 at 504, 508.

5 L. R. 2 H. L. 239 at 254.

1 Q. B. 66 at 74.

The subjoined letter, which has been handed to us by Mr. M. J. Gorman, K.C., of Ottawa, has a pathetic interest in connection with the death of Sir John Salmond of the Supreme Court of New Zealand, which we announced in our October number. Sir John was the first writer on the subject of Torts to urge the adoption of the Rule of the Admiralty and of the Civil Law in cases of contributory negligence. This he did in the fifth edition of his learned work, which was published in 1920. Mr. Gorman had previously advocated this step in the Canadian Law Times in 1917. The writer's expressed desire to know how the experiment succeeded in Canada indicated that, if he had lived, he probably would have obtained the passage of somewhat similar legislation in the far-off sister Dominion of New Zealand.

"Dear Mr. Gorman :

Judge's Chambers,
Wellington, New Zealand,
July 21, 1924.

I received with interest, your letter of April 2nd, enclosing a copy of your Bill amending the law of Contributory Negligence, and I presume that by this time it has become law. If so, may I congratulate you on the results of your efforts in this direction? Subject only to the doubt already expressed by me as to the trustworthiness of a jury in the exercise of the discretion to apportion damages, I fully agree that the change is expedient, not merely from the point of view of justice to the parties, but from that of logic and intelligibility of the law. The present state of the authorities on the question is merely chaotic. I shall be glad to know from you how the experiment succeeds. Yours very sincerely,

John W. Salmond."

RECENT DECISIONS.

SUPREME COURT OF CANADA.

On appeal from the Court of King's Bench, Appeal Side, Province of Quebec, 18th June, 1924.

Present: Idington, Duff, Anglin, Mignault, Malouin, JJ.

DONOHUE BROTHERS v. ST, ETIENNE DE LA MALBAIE.

Municipal corporation-Valuation roll-Pulpmill-Machinery non-assessable-Action in nullity before Superior Court-Art. 50 C. C. P.—Arts. 16(27), 430, 651, 656, 662, 664, M. C.

The appellant is owner of a pulpmill located in the municipality respondent. The valuation roll included in the value of the property assessed the value of a large quantity of machinery. The appellant took an action before the Superior Court under Art. 50 C. C. P. to have the roll declared null and void.

Held, that the machinery was non-assessable as immovable property under articles 16 (27), 651 and 656 M C. Idington and Malouin, JJ., expressing no opinion.

Held, also, Idington and Malouin, JJ., dissenting, that the appellant had the right to take proceedings before the Superior Court under article 50 C. C. P. in order to have the valuation roll declared null. The appellant having been assessed for property non-assessable, the valuation roll was void ab initio and this case falls within the principle of the decision of the Privy Council in Toronto Railway Company v. City of Toronto ((1904) A. C. 809).

Per Anglin and Mignault, JJ. The decision in Shannon Realties Limited v. Ville St. Michel ((1924) A. C. 185), applies only when, the subject matter of the assessment being within the jurisdiction of the assessors, the grounds of complaint are illegality, over-valuation or other causes of injustice in the making of the valuation roll (Arts. 430, 662, 664 M. C.). Appeal allowed with costs.

SUPREME COURT OF CANADA.

On Appeal from the Court of King's Bench, Appeal Side, Province of Quebec, 23rd October, 1924.

Present: Anglin, C.J.C., and Idington, Duff, Mignault, Newcombe,

Rinfret, JJ.

DAVIS V. THE KING.

Appeal Jurisdiction-Criminal matter-Dissenting opinion—Question of law Section 1013, as enacted by 13-14 Geo. V. c. 41, section 1024 Cr. C. The Supreme Court of Canada has no jurisdiction to hear an appeal

against a conviction where only questions of fact are involved, since the announcement of any dissent in the court of appeal is in such a case prohibited (s. 1013 (5) Cr. C. as enacted by 13-14 Geo. V. c. 41). An appeal lies to this court under 1024 Cr. C. read with s. 1013 Cr. C. only where a dissenting opinion has been expressed by a member of the court of appeal, upon a question which that court deems a question of law and pursuant to its direction. Mignault, J., dubitante.

Appeal quashed.

BOOKS AND PERIODICALS.

Law and Practice of Libel and Slander in a Civil Action. By Clement Gatley, LL.D., B.C.L. of the Inner Temple and South-Eastern Circuit, Barrister-at-Law. London: Sweet & Maxwell, Limited. Toronto: The Carswell Co., Limited, 1924, pp. cxxii + 932.

This is the first edition of a very comprehensive book on the above subjects, and it is a highly creditable production. In addition to the English, Scotch and Irish cases cited, the author has included a number of Canadian, Australian, American and South African authorities, which make the book of greater practical value to practitioners in all countries whose jurisprudence is based upon the English Common Law. He has omitted any reference to Quebec cases, because the law of libel and slander under the civil law system of that Province differs in many important respects from the English Law. Presumably he did not consider it feasible to adopt the method of dealing with these cases by way of additions at the end of each chapter, as was done with Canadian cases in the fifth edition of Odgers, (1912), so he has incorporated them in the text of the work; and he has followed the same practice in the General Index, though he has made separate Tables of Cases for each country.

The arrangement of the work is somewhat different from that followed by previous authors. In his Preface the author says:-"I have thought it advisable to deal first with the substantive law of libel and slander, and afterwards with the adjective or procedural law. This arrangement is at once the most logical, and the one most likely to be useful to practitioners." Further on in his Preface the author says:"The important subject of malice has been considered in that portion of the work dealing with evidence for the plaintiff, but in a chapter by itself, for the reason that malice only becomes an effectual issue when certain defences, such as qualified privilege and fair comment, are raised. After a full examination of the authorities, I have formed the opinion that the plea under section 2 of Lord Campbell's Libel Act, 1843, if substantiated, is a complete defence to an action for libel contained in a newspaper, and does not operate merely in mitigation of damages."

With regard to the Colonial cases cited, the author says that several of them cover points of law on which there is no direct English authority. He also adds:-"I have frequently found the American decisions of the greatest value, when considering questions on which there is little or