this association has recently been appointed chairman of a new commission in connection with the Civil Service investigation at Ottawa. Of course, I am not referring to the necessity or otherwise of the appointment of this commission, I am merely speaking of the propriety of appointing a member of the bar as its chairman. I have never been able to discover who drew Acts of Parliament. I am sure it cannot be the Judges, as they so love to shoot them full of holes. I can see no reason why they should not be drawn by lawyers. There is no valid excuse for permitting officials who are in receipt of good salaries to continue practising. You may say that I am robbing Peter to pay Paul, not so, Peter is now well paid for his special duties, while Paul ekes out a living. There is much work in a lawyer's office for which there is no tariff, or the tariff is inadequate.

I am satisfied that in such matters as giving general advice to clients our fees are on the whole too moderate. Many of the things clients desire to know, seem so simple to us that we make only a slight charge or no charge at all. In litigation many solicitors never think of charging more than party and party costs. So far as the general tariff is concerned, I hope that some action may be taken by this association to urge on the Attorney-General the revision of our rules, which will carry with it a revision of the general tariff, which celebrated its semi-centennial some time ago. As to the question of counsel fees, there has been some loosening up, but that does not come home so closely to the average practitioner as adequate remuneration for general work. May we not then demand the heartiest co-operation of every member of the bar, in our efforts for greater fraternity and unity in our profession? I am not asking that lawyers should all become wealthy, far from it, merely that the labourer being worthy of his hire, should for the pains he has taken to become an officer of the Court be adequately remunerated for his services, that he may live comfortably, properly maintain his family and reasonably provide for his old age.

I trust it may not be considered out of place to say a word here regarding the Law Society, of which we are all necessarily members. Doubtless the statute respecting that society will very shortly undergo revision and anticipating that some time might very profitably be spent in discussing some proposed changes. At present elections for benchers

are held every five years, with the result that in the interim all interest becomes dormant, so far as the profession generally is concerned. If the elections were held annually or biennially, or if half were elected for a two-year period and half for one year, much greater attention would be paid to the work of the society by the profession at large than is now the case. Secondly, would it not be more satisfactory to have the province divided into electoral districts and have the benchers elected by such districts instead of by the profession generally throughout the province. Now the country is balanced against Toronto, or one section of the country against another section. The members of the profession in each district are in a much better position to select those who would best represent them than is possible under existing conditions. Provision should also be made for payment of transportation expenses of benchers residing outside Toronto when in attendance at convocation.

I had occasion last year to read a paper on the subject of Legal Education in this province. Owing to lack of time there was no opportunity for discussion. I hope that tomorrow some opinions may be expressed and some action taken.

One matter to which I wish to draw your attention is the possibility of extending the work of this association. Since the codification of the criminal law, and of the law regarding bills and notes, Canadian lawyers seem to have rested from their labours. They are working away on codification in England and the United States, and I think we should be bearing our share of the white man's burden. Then it is time that we took some steps towards working out the assimilation of the laws of the various provinces. Splendid work along similar lines has been done in the United States. Associations such as ours are being formed in other provinces, and in cooperation with them, there is a wide field for useful work, much of which can be done by correspondence, at a slight

expense.

One subject which has frequently been discussed at executive meetings has been the publication of biographies of the great Judges and lawyers of this province. The desirability of this has been admitted by all, but so far nothing but desultory work has been done. While so many of their confreres are living, some definite steps should be taken, subjects and writers selected, material gathered, and at least

one biography brought out annually. I commend this to you. There is another direction in which the usefulness of our association may be extended. There are always matters before the public for consideration, concerning which lawyers mak ing a special study, could aid much in moulding public opinion. For example, I notice that one of the subjects on which we may be soon called on to express our opinion at the municipal elections in this city, is government by commission. Now I venture to say that the opinions of most of us on this subject are somewhat crude. How the people are to vote intelligently, I do not know. At odd times there have been references to it in the newspapers, but no considered discussion, that I am aware. If some committee had charge of such a subject the good work done would add greatly to the intelligent discussion of such questions.

Finally there are other more strictly legal matters, which might be put in the hands of small special committees, with a view to careful study of the development of such subjects, as municipal law, constitutional law, international law, company law, practice, etc.

THE CONDUCT OF AN ACTION.*

A year ago I had the pleasure of addressing the Ontario. Bar Association upon a somewhat difficult subject, "The Art of Cross-examination." For some reason or other, you and your colleagues in office have asked me to devote some time at this session to the discussion of a similar subject, not so much, as I understand it, from a legal or technical standpoint as from the standpoint of an outsider, that is, the man on the fence who watches the game as it progresses.

If there is one thing about your address, Mr. President, that appealed to me more strongly than another, it was the suggestion that there should be no prolixity in these meetings: therefore, I shall make the remarks I have to make as brief and as much to the point as possible.

Now, do not think for a moment, and it would be presumption on my part to think of it myself, when we have a very learned and very eminent Judge, when we have the Treasurer of the Law Society, an old practitioner, when we

Address by E. F. B. Johnston, K.C., before the Ontario Bar Association at Toronto on 27th December, 1911.

have two or three leading practitioners from various other provinces here, that anything I can say will bring any enlightenment or information to them individually or collectively. The most that I can hope for is to present the subject which I have taken, "The conduct of an action at law," in a way which has often occurred to me, namely, piece by piece as it were, and putting them all together and presenting to you that which strikes me as some of the salient points and very often the forgotten points in the conduct of litigation before our Courts. The technical part I shall avoid, because you get that in Holmested & Langton. The practical part I shall not, perhaps, deal with from the legal or litigious standpoint; I shall be rather more concerned with examining into some of the conditions which exist in the conduct of litigation, and some of the influences which are at work from the beginning to the end of a lawsuit. I, therefore, leave the beaten tracks, and look more or less at what may be termed the psychological conditions connected with and incidental to a law-suit.

Approaching a case as one must in looking at it from an outside standpoint, you have to consider first, the mental attitude of the solicitor, because after all, much depends upon his mental condition and upon his personal attitude towards the subject-matter in hand. Then you have to consider more or less the human elements at work in the client himself, and you also have to consider what motives are under-lying the litigation quite apart from the legal rights or the liabilities of the parties.

Now, it has been said, and I have heard some very learned and able Judges say, that law is good business and common sense, and that when any particular Act of Parliament ceases to be business or common sense, we find an amendment or a repeal. The practical operation of the law, therefore, being more or less based upon business and common sense, we have to take this view of the situation, namely, that good judgment is absolutely necessary as well as legal knowledge. The ablest lawyer, the keenest mind, the man who knows the most law, may not be, and very often is not, the safest counsel for the client to employ. Indeed, when one comes to consider the question of an action at law, it is surprising what a very small portion of an action the law is; I think I would be safe in saying that in the ordinary course of

litigation, law is the smallest part of the case. The knowledge of law is, of course, a foundation, the first step, but the whole superstructure of an action is not so much law as it is a question of fact, as it is a question of dealing with facts, the relation of facts to each other, the weight to be given to the individual or collective facts, the generalship in maintaining them or presenting them to the Court or jury and the skill in handling these facts under changed circumstances, which always change more or less from the beginning to the erd of the suit. So you see, if I am right, the questions arising in an action have mainly to do with the management and control of your case, with the knowledge of the situation, with a careful appreciation of the facts and what they will lead to, and what certain lines of evidence may, perhaps, relate to. You have all these things to consider.

The law itself may be comparatively simple, and indeed there may be little or no law in the case at all. Perhaps that is one reason why you very often find the solicitor who is not much known, who may not be known beyond practically his own firm, making a splendid Judge. You find, of course, that if you have a leading counsel with great knowledge of human nature, with good business capacity, and with good judgment, he, generally speaking, makes the best Judge you can get, because his knowledge extends beyond the mere technique of the law and embraces all that goes to make up the action at law.

But taking the view I have of the matter and looking at what the objective point of an action is, one is forced to the conclusion, that what our efforts are more directed to is to prove our own case or to disprove the case of our opponent without very great regard to what the legal situation is beyond the general principles governing the particular issue before us. In the great bulk of cases to-day, the law is well settled. Occasionally one comes across a case in which even the ablest lawyers are at sea and in which even the most learned Judges find difficulty in coming to a conclusion; but, as a rule, the ordinary run of cases is found to embrace matters which depend largely upon fact and upon the personal, individual management and control of the case itself. Therefore, I deal with the matter, as I say, more from the psychological standpoint than I do from the actual legal condition.