Page:The Green Bag (1889–1914), Volume 07.pdf/535

494 In the case of Murdoch v. Pitts, he decided at the trial that a promise to pay "as soon as possible" took a case out of the statute without proof of the defendant's ability to pay. Steps were taken to set aside the verdict, and the other members of the court in banco held that the verdict should be set aside on the authority of the case of Tanner v. Smart, 6 B. & C. 603. Judge Haliburton in a dissenting judgment strongly combated the authority of the English case as applied to the case in hand, and the following quotation from his decision will be more interesting on account of the vigor of its rhetoric than on account of the soundness of its law : —

"There have been a host of irreconcilable decisions under the statute of limitations. The objects and principles of the statute seem to have been lost sight of by the courts previous to the case of Tanner v. Smart, which decides that a mere admission is not sufficient, but there must be an admission from which a promise may fairly and clearly be inferred. This decision was necessary from the previous unsettled state of the law; some of the decisions have held that any promise at all was sufficient to take a case out of the statute, and one on the other hand went the monstrous length of holding that a fraudulent man who admitted the justice of the claim, but declared that he would not pay it, should escape under the statute, which was only intended to shield a man who may have lost his receipt, as he would be very likely to have done after six years had elapsed, from paying his debt twice over; and to prevent the numerous cases of injustice which would arise from permitting parties to proceed without restriction for the recovery of stale and neglected claims. The colonial courts following implicitly these decisions, and thus surrendering their discretion and judgment to others, have been dragged through all these mutations.

"But, although the decision in Tanner v. Smart was necessary at the time, too much has been made of it, and, in fact, whenever it comes up we hear of nothing else. It is applied like Procrustes' bed. If a case is too large for it, a piece is cut off, and if too small, it is stretched to the requisite dimensions. But, giving to that case the whole force which is claimed, I do not consider that the evidence in this case comes within it.

"The construction to be put on the words used is a question for this Court, and if we tie ourselves down too closely to the case of Tanner v. Sharp, we are giving to it a legislative authority to which it is not entitled. My own opinion is that it may be called a protrusive decision, advancing far into the powers of legislation, and not so much explanatory of the statute as imposing to it additional conditions."

Shortly after his retirement from the bench he went to England. About that time an unseemly wrangle between himself and the provincial government arose in regard to his pension, and the matter was finally decided in his favor by the Privy Council. In 1859, he was returned to the English House of Commons, as Conservative member for the borough of Launceston, and he continued to represent that borough to the time of his death on August 27, 1865. That he failed of success in the Imperial Parliament was unexpected by his political patrons; but it should not have been surprising. It must be remembered that he was over sixty years of age when he entered the English Commons, that the conditions there were new to him, and that his experience in the Assembly of his native province was of only three years' duration. Indeed, we have a more recent instance where a Canadian public man of longer experience, and probably of greater capacity for public affairs, was translated from Canadian into English public life with results very disappointing to his friends.

As the most illustrious man of letters that Canada has so far produced, Judge Hali