A View of Canadian Law. 297 
which are tried by a jury unless both parties agree that they be tried by 
the Judge. In most instances they are tried by the jury—I mean false 
imprisonment and that sort of thing. Equitable issues which before the 
Judicature Act of 1881 were tried in the Court of Chancery, are tried 
by the Judge alone, unless the Judge directs them to be tried by the 
jury. It may sometimes happen—lI dare say it happens in the experience 
of every lawyer—that an equitable issue, an issue that is really equitable, 
comes up and after all it turns out to be a pure question of fact, it turns 
out that the case will depend upon the determination of a question of 
fact, and that perhaps upon the credibility of two witnesses ; and a Judge 
sometimes likes to cast the responsibility upon a jury and let a jury find 
out which one of those two men are lying, if not both of them. Accord- 
ingly the Judge has the power to direct even an equitable issue to be 
tried by jury. 
Outside of these I have already spoken of, every issue in our High 
Court of Justice, or in our County Courts, may be tried by a Judge if 
he sees fit. If either party to an action desires a case to be tried by a 
jury rather than by a Judge, he files what iscalled a jury notice. If no 
jury notice is filed the case goes on the non-jury list and is tried without 
a jury unless a Judge sees fit to transfer it to the jury list. If a jury 
notice be served, the case goes on the jury list, and when it comes down 
for trial the Judge may say, ‘I will try this case myself,” and there is no 
appeal from that. The Judge is absolute master of the situation. Some- 
times a plaintiff or defendant asks that the jury notice be dispensed 
with and the case tried without a jury. Sometimes both of them agree it 
should not be tried with a jury, sometimes they have agreed it ought to 
be tried by a jury ; but whatever they may say, the Judges have it in 
their own power to try a case without a jury; ina very great majority 
of cases the cases are tried without a jury except those particular cases 
I have mentioned, and, added to that, accident cases, which are 
becoming more and more frequent. 
The old French system, the Canadian system before 1759, was to 
try all issues without a jury and by Judges alone. When Canada was 
conquered in 1759 by the British, and particularly in 1763 when the 
Royal proclamation was issued, the English law was introduced and 
juries were introduced also. The French Canadians could not under- 
stand how the Englishmen would sooner have their property rights 
determined by the agency of tailors and shoemakers than by Judges, 
That same idea is still prevalent in Lower Canada, Quebec; and it is 
becoming more and more prevalent in the province of Ontario, and we 
are trying fewer and fewer cases by juries every day. If a case is 
tried by a jury ten are required to agree in order to find a verdict. 
If a jury should not agree, the Judge may discharge them and either 
put the case over or call another jury. I follow either practice, 
according as it seems to me more convenient. Sometimes when a case 
has taken a long time and other litigants have been waiting with 
their witnesses, it does not seem fair to give these people whose 
