"Is not the personal delivery of the Writ & Transcript by the Chief Justice Sufficient Return. Might not Mr. Sherwood add the Caption & Return at ye head of the Rule in the name of all ye Justices named in the Writ.

"Saturday 9th January 1830.

Monk

V

Powell.

The Court cannot act upon ye writ while it remains on the files of ye Court of Error-or of Appeal."

10 Powell in his "Story of a Refugee" complains "The utmost assiduity of Counsel could not procure a judgment for or against from 1824 to 1831." This is a mistake, as the Records show; the delay was his own and that of his own Counsel; and no application was made to the Court of Appeals till 1827.

"See the full report in 2 Moore's Cases before the Privy Council, pp. 199. sqq.

APPENDIX F

WOOD V. POWELL

In 1823, the Provincial Act of 4 Geo. IV. c. 4., provided for the appointment of Commissioners to investigate the claims made by the inhabitants of the Province for loss and damage by the plundering of their dwellings and other buildings, and by the devastation of their lands during the war of 1812-15.

The Secretary of State directed Sir Peregrine Maitland, the Lieutenant Governor of Upper Canada, to have such a Commission appointed prior to the payment of any compensation to the claimants.

The Act, approved March 10, 1823, gave authority to the Lieutenant Governor by commission under the Great Seal of the Province, to appoint five persons three of whom should be a quorum, "to enquire into the losses respectively sustained by His Majesty's subjects during the late war with the United States of America, whether arising from the Act of the King's enemies, or of His Majesty's generals or troops, or of the Indians serving with them". Sec. 2 of the Act required the Commissioners before entering upon the execution of their office, to take an oath in the form prescribed "before any one of His Majesty's Justices of the Court of King's Bench, which he is authorized and required to administer....

Powell being an Executive Councillor, Sir Peregrine Maitland some time later, sent his private secretary, Major Hillier, to him with a list of the proposed Commissioners: Joseph Wells, Colly Foster, John B. Robinson, Peter Robinson, and William Allan. The Chief Justice said he could offer no objection to any of the persons proposed.

At the instance of the Reverend Dr. Strachan, who had been three years before appointed by Sir Pergrine a Legislative Councillor but was not as yet Bishop of Toronto or Archdeacon of York, the name of Alexander Wood1 was inserted in the place of that of John B. Robinson without the knowledge or approval of Powell; the Commission issued May 14, 1823. The Chief Justice seeing the official notice in the Gazette, sent for Major Hillier and asked him if Wood's name had been in the list of those suggested to him for Commissioners. Hillier replying in the negative, Powell desired him to bear in mind that he had not advised or consented to the appointment of Wood. The next day Hillier again called upon Powell and asked him if there was any objection to Wood as a Commissioner; and Powell said there was such objection as he could not have withheld if he had been consulted about Wood. Hillier asked for particulars and was shown two letters, one from Wood to Powell, July 6, 1810, the other Powell's reply on the following day. In the former, Wood asks the advice of the Judge "circumstanced and mortified" as he was though his "conscience neither charged" him "with vice or malice" and all that he had done was "to save from the greatest hardship that can be inflicted, to deprive a man of his liberty who had done nothing that ought to restrain him". The answer is stern—referring to the odious and incredible report "concerning Wood's conduct in his capacity of Magistrate" Powell goes on to say: "your admission left no longer room to hope that it was the invention of slander-your

conduct in the cases alluded to, is such a contrast to your usual exemplary prudence and discretion, that finding no motive to it in the history of the human mind, I could not but attribute it to some disease, some temporary alienation of judgment.....Your perseverence in offering to your friends and in deceiving yourself with such excuses is to me the strongest evidence of an unsound judgment. The gratification of mere curiosity-however idle, absurd, or preposterous-is itself but the object of ridicule only, but when such gratification has been procured by an abuse of authority when good manners and the feelings of individuals have been wounded by the Magistrate whose duty it is to protect them, I fear not only pecuniary damages are reclaimable in a civil prosecution, but that exemplary punishment must follow the conviction on a criminal information."-there is much more in the like strain. Not unnaturally, the Secretary asked for an explanation and Powell gave it:

Wood being on the Commission of the Peace, had been charged by common rumour in 1810 with acting in an revoltingly indecent way: he was said to have sent for respectable men and telling them that complaint had been made against them for assault upon women, and that the women claimed to have wounded them, insisted that they should bare themselves for his personal inspection. Whether this charge was true, we need not inquire; certainly original documents are in existence signed by persons who claimed to have been subjected to this treatment and who give particulars. It is equally certain the Attorney General Macdonell dubbed him "Inspector General for Private Affairs", and that this nickname was constantly used for years.

Powell was stopped in the street, July 5, 1810, by the Solicitor General Boulton to hear the complaint of one of those complaining and took down the amazing story in writing; in the evening, Wood called upon him, admitted nearly everything that was charged, and was advised that if he could not produce the women who claimed to have been assaulted, he had better not remain in York. Wood left shortly after for Europe; but he returned and lived in York for several years in good repute, associating with the best people in the Capital.

Nothing more was heard of the matter till June 2, 1823; Col. Wells, Col. Foster, Col. Allan and Wood that day waited on the Chief Justice with blank forms of oath and certificate of their being sworn into office as Commissioners, and a letter from Major Hillier stating their appointment. Powell was naturally astonished in view of what had taken place between Hillier and himself and asked to see the Commission. He then desired the visitors to be seated, and took Mr Wood into an adjoining room. He explained to Wood his objections to his being on the Commission, so that he might if so inclined decline to be sworn in for the present....he says he did so because he was under the impression that the Lieutenant Governor would not allow Wood to be a Commissioner and it would be less humiliating for him not to be sworn in in the first instance than to be superseded after he was in office. Wood declined the suggestion, and the two returned to the other room where the three Commissioners were waiting.

The Chief Justice craved their indulgence while he should write a note to Major Hillier, stating the presence of Wood, and asking his. attendance. Wood left the house with the servant who was sent with the letter: the other three were sworn in and received their certificates and went away leaving behind the blank certificate for Wood. Wood returned with Hillier, and then it is claimed he declined to be sworn

in before the Chief Justice from his subsequent conduct this seems likely.

He retained James Buchanan Macaulay, a young man of great ability who had been called to the Bar the preceding year, but who had already come into considerable practice (he became a few years later a Puisne Justice of the King's Bench, and afterwards Chief Justice of the Common Pleas, dying in 1859, Sir James Macaulay).

Macaulay applied to the Court of King's Bench for a Writ of Mandamus to compel Powell to administer the oath. A mandamus has never been awarded against a Superior Court; but there is no reason why such a writ should not issue against one charged with an official duty, even though he happens to be a Superior Court Judge, the duty to be performed being obligatory and not merely discretionary.

The following appears in the Term Books at Osgoode Hall: The Trinity Term 4 George IV, on Monday July 14, 1823, (Praes. Powell C. J., and Boulton J) "In the matter of Alex Wood and The Honble. William D. Powell C. J.-Motion for a Mandamus Nisi directed to the said Wm. D. Powell, commanding him to administer to the said Alexander Wood the oath of office as a Commissioner for the investigation of Claims of Loss. Granted J. B. Macaulay." Powell at once communicated to Macaulay his readiness to swear Wood in; but Wood by letter, July 16, said: "the circumstances attending your former refusal having wounded my reputation so deeply as to lead to a second Commission in which I understand my name is to be omitted, there can be no object in accepting the oath at this period. The object of the mandamus was to call upon you to record publicly and explicitly the reason for your first refusal, that I might vindicate my character should you assail it; but as you have intimated that you never did refuse, it is in your power of course to return that you were always ready and willing, which return, should it be made, I am prepared to meet and answer.' If one object of the Mandamus was as stated in this letter, the letter itself defeated the object, as it left it open to Powell to act as he did that is, return his willingness and attach the letter to his return.

It is very probable that the proceedings in Mandamus were taken to harass Powell, as nothing prevented Wood from applying to another Judge to be sworn in; he did in fact apply to Mr. Justice Boulton almost immediately and was sworn in, quantum valeat, by that Judge. But he had another string to his bow: In addition to the application for a Mandamus, he brought an action2 on the case for damages. The following I find in the Term Book, No. 8 at Osgoode Hall:

"Trinity Term, 4 George IV

Alex'r Wood

V

Wednesday 16th July, 1823

Motion for six weeks time to plead The Honble. W. D. Powell W. W. Baldwin. Granted Issued"

It will be seen that the Chief Justice went outside the lawyers who may not unfairly be called the "Government set”-showing to anyone acquainted with the history, legal or otherwise, of the time, what indeed is all too obvious from other facts that he was no longer persona grata with the "powers that be."

The Rule for time to plead was not entirely uncalled for-the action was a simple one of trespass on the Case, and the declaration needed but to set out the Act of Parliament, the appointment of the Plaintiff

as Commissioner, his application to the defendant to be sworn, the Defendant's position as a Justice of the King's Bench, his refusal and damage resulting. The declaration did allege malice and intent to bring the plaintiff into great scandal and disgrace; but these were mere matters of aggravation to increase the damages--he claimed $20,000. The defence was not so easy to frame, and we find not only Dr. Baldwin and his client in correspondence and conference but also Mr. Sherwood consulted and his opinion asked. This was Levius Peters Sherwood who became a Justice of the King's Bench in Michaelmas Term, 1825, on Powell's resignation as Chief in that year. He was succeeded by Mr Justice Campbell and Sherwood took Campbell's place on the Bench. The "Pleas" would alarm a modern lawyer by their length and wealth of technicality and repetition: but, boiled down, the defence was two-fold: 1. a general denial, 2. setting out the facts of the application to the defendant as Executive Councillor for advice as to the appointment of Commissioners and his advice, the subsequent application to him for his reasons for objecting to Wood, and his answer (setting out the whole nauseous story), and what took place when the Commissioners called upon him. It was recognized that this second plea was rather to damage than a valid defence.

The case came on for trial at York, October 15, 1823. The day before the trial was to be proceeded with, Dr. Strachan wrote the Chief Justice urging a settlement, and offering his services as mediator. He replied: "Sensible of no injury to Mr. Wood in any part of my conduct, public or private, I shall be ever ready to make all reparation in my power except by a compromise before conviction. The industry with which the public mind has been poisoned by false and malignant calumnies on my principles and conduct, cannot have failed to operate the desired prejudgment of any jury to whom it may be submitted, and renders it impossible for me to shrink from the enquiry which I regret on account of the respectable part of the community which unite with you in deprecating the progress of this suit". A suggestion met in this spirit naturally came to naught; and the action proceeded.

The presiding Judge was Mr. Justice Campbell, but Mr. Justice Boulton was also upon the Bench-he was consulted and he advised on all points that arose at the trial: Macaulay held the plaintiff's brief, and Dr. Baldwin that of the defendant.

Colonels Wells and Allan were called and gave a very fair and impartial account of the facts at the time of the alleged refusal, the Commission was produced and the letter we have spoken of; also the Writ of Mandamus and the return of defendant thereto, the new Commission which superseded that which contained the plaintiff's name and which did not contain his name. The remuneration the Commissioners received who sat by virtue of the latter Commission was also proved.

For the defence, Major Hillier was called; he gave an account of the conversations between himself and the Chief Justice, and said the Chief Justice did not exhibit any animosity toward the plaintiff. No evidence was given of any express demand by the plaintiff to be sworn or of any express refusal by the defendant: but the refusal of the plaintiff to be sworn when he returned with Major Hillier, was proved.

The trial judge held that demand and refusal should be inferred from the circumstances and from the letter by the plaintiff to the defendant of July 16 not answered. The jury found for the plaintiff