« PreviousContinue »
sample is horse hair." Upon this fact being verified, there was considerable laughter among the audience, in which the jury joined. The witness stammered out some explanations which caused the jury to smile, and my adversaries began to look rather blank. I saw my advantage and said to the witness: "Thiswill do,?sir, please to step into the box," which he did, much confused. I just put him a few more staggering questions touching the other articles, &c., which he answered in a most unsatisfactory manner. I then said, "I have done with you and you may retire." He had broken down completely, and my cross-examination had given a most favourable turn to my case. I proceeded to adduce evidence in rebuttal, which I had kept in reserve. This new testimony entirely neutralized that of the defendants', and corroborated mine. It was my turn now to address, and I rose to do so with great confidence, my blood was up. I approached a few feet nearer to the jury and began by some severe animadversions on the agent of the company. One of the opposite counsel interposed and called upon the court to put a stop upon tliese injurious reflections, remarking that they were in no way justified by the evidence and my address was a comment on testimony. The judge intimated that I had better desist from making observations which the proof probably did not warrant. I immediately rejoined that I could quite understand my learned adversaries' apprehensions and would strictly obey the ruling of the court. I then went on to answer the opening speech of the defendants' counsel, and in doing so employed all the bitterness and sarcasm I could command. Again I was interrupted by one of the opposite lawyers who characterized my remarks as unwarrantable and outrageous and asked the court to interpose; again the judge requested me to confine my observations to the record and the evidence. I replied that as my learned friends seemed very susceptible, not to say sensitive, and were no doubt and justly very nervous about the turn the defence had taken I would spare their feelings, which I professed thoroughly to understand and would cheerfully obey his Honor's ruling. I then commented on the evidence at great length and with some vehemence. In the course of my remarks I think I pretty effectually demolished all the testimony brought against my case, and presented a very favourable view of my own evidence. The jury seemed to go with me, at least to listen with marked attention, and I sat down with a feeling of considerable confidence that my client would obtain a verdiet or if lie lost it the fault was not mine. As the hour was now late the judge said he would adjourn the court till the following morning when the trial would be resumed. I felt now, that much, very much depended on the judge's charge, and neither I nor my client slept much that night. Precisely at ten o'clock the next day, the judge took his seat on the Bench and proceeded to deliver his charge; he told the jury that the points in the case were few; that it was entirely a question of evidence. The plaintiff was entitled, beyond all doubt, to compensation; it could not be less than a certain amount which he named, and it might be as much more as, in their judgment, would indemnify him.
The jury retired and in a short time brought in a verdict for my client for the full amount of his claim, less some 8100. I had won the day, and my adversaries were among the first to acknowledge being fairly beaten. But my troubles did not end here. Having obtained a verdict in my client's favour, the next thing was to secure a judgment for the amount upon that verdict. In this I failed, and upon a small and purely technical point, my action was dismissed with all the costs against my client. It would be useless to attempt to describe my annoyance or the despair of my client. The verdict of the jury had cleared his conduct from all suspicion of fraud, and vindicated his character completely, but his lawyer, from a want of skill, or a want of attention, or technical knowledge of his profession, had ruined him. The costs were enormous and my client was a beggar. For me the position was worse than if the verdict of the jury had been against the plaintiff. I was very much put out by the lamentations of my client, and sorely annoyed by the remarks of some of my professional friends, who were anxious to know how I came to lose my case. Even some of my friends on the jury expressed to me their regret that so good a case had met with such a fate at the hands of the court, that it was altogether too bad. I of course cursed the judge, who had dismissed my action, and, in fact, all judges I could think of by name. But it would not do. In the majority of cases, people who are not directly interested in the decisions of the courts, and even many who are, are very slow in taking up the rabid denunciations of lawyers who have lost their cases. It no doubt upon the whole is a very great mistake, and I have long since given it up. It is not wise for a lawyer who is desirous of obtaining justice for his clients—it won't do at all. But to return.
Vol. I. o No. 1.
Amidst all the difficulties of my client's position, I did not lose courage. I was determined to appeal to the Queen's Bench, but I had to find security, and after infinite trouble, I succeeded in persuading a friend of my client's to become security. He did so with great reluctance, and prevailed upon another friend to join him. They did not disguise from me their fears that the case would be lost in appeal, but for the sake of their friend they would assist him in again trying his luck. I carried the case to appeal, argued it before that Court with all the earnestness and professional skill I could command. I had the good fortune to make the points in my case clearly intelligible to the tribunal, and the judges, five in number, at once unanimously reversed the judgment of the court below and gave judgment in favor of my client for the full amount of the verdict, with interest and all the costs of each court.
By this time, and owing to some peculiar circumstances not necessary to relate here, this case had attained to a certain notoriety, and therefore it is quite needless to affirm that my satisfaction at winning it before the highest court in the country was complete.
This is another proof, if such were wanting, that with industry, perseverance, confidence in tone's case, and a just cause, justice almost always triumphs in the end, sooner or later; and this is the moral of my story.
John A. Perkins.
Tin Magistrates' Act of 1869, Annotated for the use of Magistrates, with Forms, Precedents, and an Introduction to the Laic of Evidence, By W». H. Kerr, Esq., Barrister at Law.
The above is the title of a work recently published, and which reflects very great credit on its author, Mr. Kerr, a practitioner of the Montreal Bar. It is to be regarded as a most valuable acquisition to the list of Canadian publications as bearing upon a subject of so much importance to Magistrates and others concerned in the administration of the law. In dealing with his subject, the author has attained the merit of being lucid and concise, whilst at the same time he has given additional importance to his work by the citation of numerous authorities. The research and application necessary for the proper application of these authorities can hardly be estimated at its proper value, and this suffices to commend the work to the attention not only of Magistrates, but of professional men.
In the first part of it, we find an exposition of the office of a Justice of the Peace; how appointed; the nature of his duties; jurisdiction as to locality; jurisdiction generally; and other matters affecting the exercise of that jurisdiction. Then follows under the heading "Evidence before Justices," a most valuable compilation of rules of evidence, in a condensed form, but sufficiently comprehensive to serve as a valuable guide to Magistrates upon a branch of law which the great majority of them have not the opportunity of studying from the want of works relating to the law of evidence. Following this is a commentary upon the jurisdiction of the Court of Quarter Sessions, showing what offences are triable before that Court, and will subserve the purpose of instructing Magistrates, when committing a party for trial, before what Court the trial should take place.
The author then gives, clause by clause, the Magistrates' Acts of 1869, 32 & 33 Vict., ch. 30, relating to indictable offences, and 32 & 33 Vict., ch. 31. relating to summary convictions and orders, with valuable notes and authorities, showing the jurisprudence which has obtained in England upon the corresponding clauses of the Imperial Acts. We shall presently advert to Mr. Kerr's annotations on these statutes, desiring simply for the moment to advert to the other portions of the work. The provisions of five other statutes passed by the Dominion Parliament then follow, relating to the prompt and summary administration of criminal justice; the trial and punishment of juvenile offenders; the more speedy trial in certain cases of persons charged with felonies and misdemeanors; and the Act repealing certain enactments respecting criminal law. The Author has added numerous forms, consisting of those appended to the statutes referred to, and also other forms of practical use not to be found in the statutes. The index has been very carefully drawn, and affords a ready reference to every subject treated of, —a matter of considerable importance in a work of the kind. Reverting to the two most important Acts, annotated by Mr. Kerr, relating to the duties of Justices in relation to indictable offences, and to summary conviction and orders, we feel that a more extended notice of this portion of the work should be given. As to the first, 32 & 33 Vict., ch. 30, relating to the duties of Justices in relation to parties charged with indictable offences, it is to be observed, that this statute establishes a unform rule throughout the whole Dominion, and the copious notes of the author, render this portion of his work of great practical utility to Magistrates in general.
We have now to review Mr. Kerr's annotations of the Act 32 & 33 Vict., ch. 31, relating to summary convictions and orders. It is of the utmost importance to note that this statute is limited in its application by its first section, as also by the repealing Act 32 & 33 Vict., ch. 36, to "any offence or act over which the Parliament of Canada has jurisdiction," and does not extend "to matters relating solely to subjects as to which the Provincial Legislatures have under the British North America Act 1867, exclusive powers of legislation, or to any enactment of any such Legislature for enforcing by fine, penalty, or imprisonment, any law in relation to any such subject as last aforesaid, or to any municipal by-law relating to any offence within the scope of the powers of the municipality."
The author, at page 7, admits [that this distinction should be made, as he says :—" It is to be remembered that this work does not treat of the duties of Justices of the Peace under acts ot local Legislatures, but is confined solely to a consideration of their duties and powers under the acts of the Parliament of Canada."