cause, and the proceedings of this Court, beginning with the 20th October, 1773, and ending with the . . . (a blank not filled). In a note he says: "The first business I acted in Chancery after my appointment of Registrar arose soon after the arrival of His Excellency Francis Legge, Esq.-" Then follow entries in the various causes and the doings of the Court therein from the date above mentioned until 21st December, 1782. The first entry, 20th October, 1773, is in the cause of Malachy Salter v. Gresham Tufts. In this cause the Chancellor ordered the parties and their counsel to attend before him at the Governor's house. Then follows the record of the sitting of the Court:

AT THE GOVERNOR'S HOUSE, 12 O'CLOCK NOON.

MONDAY, Nov. 1, 1773.

Present:

HIS EXCELLENCY THE CHANCELLOR.

MR. BULKELEY AS MASTER IN CHANCERY.
THE REGISTRAR.

The parties attending with their counsel, viz., Mr. Gibbons, for the complainant, and Mr. Wood, for the defendant. The petition of Thomas Bridge as attorney to the complaint was read, and the Court considering the same observed there appeared to be no affidavit from the principal himself to support the matter of fact stated in the petition on which he founded the prayer, and as such affidavit was indispensably necessary for proceedings of this nature in Chancery, the parties were directed to attend at ten o'clock to-morrow, and the Chancellor would then proceed further, upon which the Court finished for this day.

At ten o'clock the next morning the Court opened at Governor's House, but the parties and their counsel were not there, as appears by the following note: "The Court present as yesterday, but the parties not appearing till near eleven were directed by the Chancellor always in future to be punetual to the hour ordered, for he would be exact himself, and expected the same from them." The Court then proceeded to the hearing, of which full details are given, and the Chancellor then gave his decision: "The Court therefore considering the whole matter, and paying due attention to the pleadings and allegations of each party; and those on the part of

the complainant, supported by the affidavit of Thomas Bridge, not appcaring strong enough to continue the injunction, doth order that the same be dissolved, and that the defendant be at liberty to take such execution or executions on the judgment so obtained as he shall think fit." From the fact that one Master only was present on the hearing of this case, it is evident they were no necessary part of the Court. I have, however, gone carefully through the record contained in this book, and find that as a rule the same two Masters, Richard Bulkeley and Charles Morris, were always present assisting the Chancellor at the hearings. Later on different Masters performed the same office. On some occasions I find the common law Judges were called in and sat with the Chancellor, no doubt advising him on the more intricate questions coming up for decision. But in pursuing my investigations I have been surprised to find that, contrary to the common impression, there was a Master of the Rolls who sat with the Chancellor prior to 1825. The first record of the existence of such an officer is to be found in the Minute Book of the Court of Chancery commencing 31st March, 1789. The following note is on the first page:

"First Court of Chancery held in which J. Gautier acted as Clerk or Deputy Registrar." Then follows:

1789.

"Court of Chancery.

March 30. Present-The Chancellor,

Master of the Rolls,

Master in Chancery."

Then names are given: Governor Parr,

H. R. Bulkeley,

F. Hutchinson.

"Court opened in Governor's House. Six causes were set down for hearing, but the Court adjourned to 4th February, 1790, when this record is made. A desultory conversation took place. Much was said of former causes, and of the above, but the gentlemen of the Bar not being sufficiently prepared, the Court adjourned to the 11th inst." Following the record we find that at the ensuing seven sessions of the Court is was similarly constituted, the Master of the Rolls always being present. In the next eleven sessions of the Court we

find, in addition to those already mentioned, the Chief Justice, Sir Andrew Strange, sitting with them. The five following sessions were presided over by the Chancellor, the Master of the Rolls, and Master in Chancery. On the 22nd January, 1793, the Court was held in the Court House, and then were present in addition to the Chancellor, Master of the Rolls, and Master, the Chief Justice and Judge Brenton. The Registrar notes that the Chancellor was assisted by these two common law Judges. These same Judges, or one of them, continued to attend the sessions of the Court from this time -not in all cases, but apparently in the majority of them. We are therefore quite safe in drawing the conclusion that from the inception of the Chancery Court to the appointment of Mr. Robie by Royal commission, the proceedings were presided over by the Chancellor, at first with the Council as a component part of the Court, and some ten or twelve years later by Masters in Chancery, and one or more of the common law Judges.

I find the following memorandum made in Book Chancery No. 1, by James Gautier, Clerk, which should be preserved as showing the condition of Chancery records at that date:

"Memorandum Halifax, Nova Scotia. On the 27th May 1792, the Honourable Mr. Richard Bulkeley, Master of the Rolls in Chancery, deposited or gave me in charge for the first time the following books relating to Chancery, which I had never seen before, although I had acted as Registrar or Clerk from the above printed period (25th January, 1788), viz., Chancery box in the secretary's office-a parchment book -No. 1, a marble covered book-No. 2-do. 3, do. 4 (5, 6, and 7 wanting), do. 8 (9 wanting), do. 10 and 11 in one book, do. 12 and do. 13 and 14 in one book. Every cause in Chancery is now numbered from No. 1 and so on, bearing reference to then books of Chancery No. 1 and 2. From the year 1775, in fact, but more so from 1777 and 1778, the whole record of the proceedings in Chancery seems to have dropped, and most of the books mentioned in the first sentence of this memorandum from No. 1 to 14 were exclusive of that, but little wrote in. For further particulars see Chancery book, No. 2.”

VOL. XX. C. L.T.

4

I have already mentioned my surprise at finding the title "Master of the Rolls" given in the Chancery records prior to 1825, it being beyond doubt that no such Judge with a Royal commission had up to that time been appointed. The Master of the Rolls is invested with the same judicial power and authority possessed by the Master of the Rolls in England, and as the appointment emanates from the Crown, the office being held under Royal commission, such a title conferred on an officer of the Court not invested with judicial authority was a misnomer-a misconception of the nature of the office. The explanation seems to be that the person called "Master of the Rolls" in these entries was simply the first Clerk, or senior Master in Chancery, but had no judicial authority. The fact that he is never recorded as presiding in Court alone, but always with the Chancellor, brings out clearly his true position. Afterwards when the Master of the Rolls was appointed by mandamus from the Sovereign, he always presided in the Court of Chancery as the sole Judge, and from his orders and decrees there was an appeal to the Governor as Chancellor. On the hearing of such appeals the Chancellor generally, if not always, called in one or more of the common law Judges as his assessors.

With these records before us we can at this day form a very fair conception of the old Court of Chancery presided over by our Governors as Chancellors. We further glean from them that the sessions of the Court were at first held in the Governor's house, then in the council chamber, and finally in the Supreme Court room in the Province building, now occupied by the legislative library. Masters were appointed. There was a Registrar and Deputy Registrar, Sergeant-atArms, and crier or messenger, and lastly solicitors duly enrolled and entitled to practise in the Court. It would appear from an entry in one of the Chancery books that the barristers and solicitors had not been always in the habit of attending the sittings of the Court in proper costume. A special order was made in the time of Governor Legge that in future all gentlemen practising before the Chancellor must come properly robed.

HALIFAX.

(To be continued.)

CHARLES J. TOWNSHEND.

EDITORIAL REVIEW.

Badgering Counsel,

The practice of Judges-much commented on recentlyof assailing counsel with remarks and questions and interrupting the argument by giving their own views on the subject in hand, or other subjects, connected or unconnected with it, is defended by explaining that it is intended to assist in getting at the marrow of the case, and not, though it sometimes looks like it, to convince counsel that they are wrong or know nothing about the case, or to put them down or stop their arguments. It is related that one day a barrister moving to continue an injunction had a very unpleasant quarter of an hour with the Court, being constantly interrupted and, as it seemed to him, opposed by the Judge on the bench. After having manfully struggled through what he had to say, he added, "I have presented my client's case as well as I can, but I see your Lordship is against me." "I am not against you, Mr. On the contrary, I think you have made a very strong case. I will hear the other side." Injunction continued till the trial!

Security for Costs-Ordinary Residence.

The case of Denier v. Marks, 18 P. R. 465, to which we referred in volume 19, at p. 235, has been overruled by the recent decision of the Court of Appeal in Allcroft v. Morrison, 20 Occ. N.31. By Rule 1198 (b) security for costs may be ordered "where the plaintiff is ordinarily resident out of Ontario, though he is temporarily resident within Ontario." Mr. Justice Osler said that "actual residence abroad is still what prima facie entitles the defendant to security, and the plaintiff cannot answer the application by shewing that he has practically no fixed residence at all.

It by no means follows that because under clause (b) a plaintiff may be ordered to give security even when