EDITORIAL REVIEW.

Assimilation of the Practice.

The title of the Judicature Act is as follows:-"An Act to consolidate the Superior Courts; establish a uniform system of pleading and practice; and make further provision for the due administration of justice."

The less said about pleading the better. If there is any system at all, which we are inclined to doubt, sober reflection warrants us in saying that there is no adjective extant which can be used to qualify it.

But under the present state of affairs, the more said about practice the better-especially that part which pertains to the bringing on of motions.

First as to the weekly Court. In the Chancery Division motions are properly returnable only on one day, Tuesday, though the Court sits on Wednesdays and sometimes on Thursdays. In the other Divisions motions are returnable twice a week-on Tuesdays and Fridays. In the Chancery Division Tuesday motions need not be set down. In the other Divisions they must be set down. In the Chancery Division Wednesday motions must be set down.

In the Chancery Division there is but one Chamber day. In the other Divisions there are two. In the Chancery Division appeals to a Judge in Chambers must be set down. In the other Divisions they must not. In the Queen's Bench and Common Pleas Divisions it is held that an appeal to Chambers may be brought on before any Judge of the High Court sitting in Chambers, without reference to the Division in which the action is pending: Laidlaw v. Miller, 11 P. R. 335. In the Chancery Division it is held that section 25 of the Judicature Act requires an appeal to be brought on in the same Division in which it is pending, and if it is set down in another Division the setting down is void Re Christie, 7 C. L. T. Occ. N. 115.

Then as to the Divisional Court sittings. In the Chancery Division no distinction is made between jury and nonjury cases (except as to trials). If a judgment or verdict is to be moved against, a notice of motion must be given seven clear days before the sittings, and the motion must be set down seven clear days before the same date; and if a mistake made it is irreparable. In the other Divisions a two days is notice of motion against a judgment is necessary; but an order nisi must be applied for in jury cases. And where the jury find certain facts and judgment is given by the Judge upon the findings, the judgment is moved against by notice of motion, but the findings are complained of by order nisi. And in the Common Law Divisions omissions to set down are not considered fatal.

In the Chancery Division the original judgment is delivered out to the solicitor and a copy kept. In the other Divisions the original judgment is kept and a copy, if desired, is delivered out.

It is needless to multiply instances. There are few who are fortunate enough not to have discovered to their cost that the practice is anything but uniform. This is one of the most striking sublunary instances of "descent with modification" that has ever presented itself. If any doubting evolutionist had it demonstrated to him that these various practices had a common ancestor-the Judicature Act-he could hardly then deny the possibility of a common. progenitor producing both a bamboo stick and a mimicking caterpillar.

As we have before pointed out, these differences in practice are needless. Not only is there no necessity for them, but they are irritating to the profession who practice. outside Toronto, and who are not as familiar with the practice as those who spend their days at the Hall. The origin of the variation is clear. It is simply an adherence by the Judges to those old rules of practice the differences in which it was thought were to some extent obliterated by the Judicature Act. We do not propose to institute a comparison between the two practices. There is much that is good in each. What is complained of is that two practices

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have to followed. And it depends upon the merest accident as to which will govern-the chance of issuing a writ in one Division or the other.

There is no reason, indeed, why there should be separate Divisions. The same law is administered in all the Divisions. Equity cases are tried at the Assizes and Common Law cases at the sittings. And we have the Chancery Divisional Court hearing motions in jury cases.

Again, when the Chancery Divisional Court hears motions in jury cases, and deliberates upon whether the Judge at the trial misdirected the jury, or improperly nonsuited the plaintiff, and whether the damages were excessive, or the jury was irregularly impannelled, and so on, is it not rather an anomaly that they do not themselves sometimes charge a jury or nonsuit a plaintiff? If the principle is a correct one that a Bench of Judges who have never sat with a jury are competent to review the verdicts of juries, then let us have a Divisional Court sitting frequently, composed of Judges who do nothing else, and frequent sittings for the trials of actions by Judges who are set apart for that work only. If the principle is not a correct one, then let us have uniformity, complete uniformity, in all the Divisions.

This brings us again to the question of the sittings for trials. As the Chancery Division Judges try a good many non-jury common law cases, and the Judges of the other Divisions a good many equity cases, there is no longer any distinction between the cases based upon the Divisions in which they are pending. The only rational division of cases is into jury and non-jury cases. If this is borne in mind a very simple distribution of the work might be made. To borrow an idea from the County Courts-there might be four sittings a year for non-jury cases, and two for jury cases. The chances of a speedy trial would induce many to prefer a trial before a Judge alone to a trial by jury, and thus the number of jury cases would be diminished. If that change were assented to, it would then be possible to fix the dates for the non-jury sittings, and practitioners would always know long beforehand (as they do now in the County Courts), exactly on what day the trials would com

mence. The judicial strength would in this way be spent. to greater advantage than it is now, trials would be more. speedy, and the profession and the public would be better satisfied than they are at present. As to the Bench, we do not doubt that the Judges would find it an advantageous. change. They would go the circuits more frequently, but would on the whole have less to do at each sitting; and instead of their circuit allowances being diminished, as they probably would be by merely trying all cases at two sittings a year, they would be increased.

If we cannot have all these changes, at least let us have an assimilation of practice for the weekly Courts and Chambers.

The legislative Committees of the County Law Associations are now considering these and other matters, and it is to be hoped that some beneficial alterations will be made.

Fraudulent Preferences.

Two recent cases show how the construction of the Act respecting assignments for creditors may be approached from different points of view.

In Building and Loan Association v. Palmer, 12 Ont. R. 1, though the rule is not laid down in express terms, it seems to be implied that the proper way of determining whether there has been an offence against the Statute, is to examine first whether the transaction comes within the third section. If it does, there is no need for further enquiry. The third section declares that "nothing in the preceding section shall apply to any bona fide gift, convey. ance, assignment, transfer or delivery over of any goods which is made in consideration of any present actual bona fide payment in money, or by way of security for any present actual bona fide advance of money, or which is made in consideration of any present actual bona fide sale or delivery of goods or other property, provided that the money paid or the goods or other property sold or delivered, bear a fair and reasonable relative value to the considera

tion therefor." It is lawful therefore, for an insolvent (i) to sell goods for a present actual bona fide payment in money; (ii) to mortgage them for a present actual bona fide advance of money; (iii) to exchange them for goods or other property; provided in each case that the consideration is a fair one. Under any of these circumstances, it makes no difference under this case, whether the effect is to defeat or delay creditors. So we understand the judgment. In speaking of the second section and its effect, it is said, at p. 5, "It is not necessary that I should say how this would be, for I am of opinion that the third section applies to the case."

It is possible then for an insolvent to sell his whole stock in trade to a purchaser for its value in cash, and with the proceeds thus obtained to pay one creditor in full. Neither the creditor nor the purchaser may be in fault, yet the effect will be to defeat and delay creditors, and to give the one creditor a preference over the other. Yet the sale would be bona fide and the payment by the purchaser bona fide, in the sense of its being an adequate price.

What is the meaning of a bona fide payment under the third section? If the words "provided that the money paid bears a fair and reasonable relative value to the consideration therefor" had been omitted, it would have been open to argument that a bona fide payment meant simply an adequate consideration. But it is evident that it has a wider meaning as the section now reads. The payment must be bona fide and an adequate price for the goods. Does bona fide mean that the purchaser must see to the application of the purchase money? Though innocent in fact he may be guilty in law of having aided in defeating creditors; and it would not be at all an anomalous thing for a purchaser under such circumstances to be held to the duty of properly applying the purchase money. This would, it is true, put the insolvent in the situation of a trustee for the distribution of the money, and the statute certainly gives him as much of that character as it is possible to invest a man with who has lost the confidence of his cestuis que trustent.