IMAGE EVALUATION TEST TARGET (MT-3) 1.0 I.I I 40 2.5 12.2 2.0 1.8 1.25 1.4 1.6 .4 6" ~ ► Photographic Sciencfts Corporation ^: A^ / 1 1 r" THOUGHTS ON LAW REFORM. At a period when the defects, both real and imaginary, of the admi- nistration and machinery of the Canadian Law Courts have assumed an unusual prominence in public discussion, it may not be deemed out of place to offer a few remarks and suggestions in plain, untechnical language, on the alleged abuses and their possible correction. A ten years tolerably extensive connexion with the Common Law Courts enables the writer to speak with some practical knowledge and experience, and ue prefers that his remarks, be they sound or idle, shall go forth under his own name rather than in any anonymous shape. That abuses exist requiring prompt removal, it is idle to doubt— that the pruning-knife be applied judiciously and calmly is, I conceive, a matter equally important to the public and to the legal profession. — Thousands a year can, I believe, be readily saved to the former, without impairing the efficiency or diminishing the respectability of the latter; and, so long as a class of men exist as agents for the explaining of legal difficulties, or the advocates or vindicators of individual rights, so long I may fairly assume, is it an object of almost equal importance with the economical administration of the laws, that such a class should stand as high as is practicable in point of character for integrity, ability and uprightness. Such a class must ever exist in every country where property, life, liberty and reputation are protected by clear and positive laws, and when they become as a body corrupt, venal, time-serving and faithless, it will be a sign of fearful significance that both the morals, the fortunes, and the liberties of the country have arrived at, or are hastening to a period of degeneracy, danger and prostration. There are many points that suggest themselves to me on this particular subject, but preferring the charge of abruptness to that of prolixity, I come r^t once to the suggestion of certain changes which I am satisfied can be made with great public advantage. I pretend not to discuss the machinery of the Court of Chancery, having had but little experience of its practical working: however, I may share in the feelings entertained by a large body of my professional brethren on the subject of a court, which, designed on the purest princi- ples of honour and equity, and the liveliest regard for the public interests, and indispensable as I deem it in every British land, has in its unhappy management been the cause of most of the odium and re- proach latterly cast on the whole profession of the law. Under Its present able and upright management, we may confidently look for efficient and thorough reform ; so that Lereafter, people may venture to seek for equitable relief, without the risk of incurring expenses wholly disproportionate to the wealth and prosperity of the country. I am an advocate for freeing the Superior and the County Courts from the decision of a large class of cases in which the interests involved are of a very small pecuniary amount, and for the determination of which the machinery of writs, pleadings, issues, juries and judgment -rolls are necessarily out of due proportion, expensive. It is said in the country that the Division Courts are too expensive. The lawful costs of a suit are only a few shillings, and those who have found the costs at all serious, may depend "upon it that the law was violated and illegal charges demanded. I suggest the transfer to the Division Courts of all trespasses, torts and injuries of all kinds to personal property in which no title to lands or annual rents &c. &c. are involved, and where property injured or damage done, amounts to any sum under JEIO. This would at once free the Courts of Record from a very large class of cases which now occupy a very large portion of their time, and in the discussion of which Counsel argue, Judges charge and Juries listen, and mourn their lost time for long hours and days. By the law, as it now stands, an action can be brought in the Courts of Record for the loss of an article value sixpence ; and too many cases are occurring in which a sap-trough, a buffalo skin, a sheep' value ten shillings, &c. &c., form the splendid prize for which advocates contend, and clients spend their hard earned money. I would transfer all such cases to the Division Courts. One sensible Judge, practically conver- sant with legal rights, could validly dispose of them in a cheap and summary way, and thus save to the country a sum which, I have reason to believe, would defray a very large portion of the whole costs of our Judicial system. No man not thoroughly acquainted with our Assize and County Courts can be at all aware of the great mass of business which would be affected by this change. The great decrease in the County Court business would more than balance the extra time required of the Judge presiding in the Division Court for such cases. I now propose to consider in what rational way a considerable saving, both in time and expense, can be effected in suits for the collection of debts. I think much can be effected in this department, especially by simplifying the machinery, and reducing the amount necessarily dis- bursed to various officials. The public are not generally aware that in almost every case in which amounts of £3, 4, 5, 8 or £10, costs are incurred in legal proceedings, almost invariably 33 and often 50 per cent, of the whole bill has been actually disbursed to various officers by the attorney in the suit. But all is supposed \ohe his profit, while in fact a very large proportion is paid to the Government, the various clerks of Court, and especially to the Sheriff, and hence the emolument of the attorney is regarded as exorbitant and oppressive on the public. The tendency of the Legislature and of the orders of the Courts for the last few years has generally been to increase the amounts disbursed to the various officials, and to reduce the amounts retained as profits by the attornies. Some four years ago the Legislature issued £6000 of debentures to the Law Society to provide accommodation for the Courts in Osgoode Hall, and to create a fund for its repayment imposed a very heavy tax on law r ,\ f .\ suits, adding 50 per cent to the former cost paid for a writ, and 2a. 6d. on every judgment entered, and so on for some other steps in the cause. About the same time their lordships the Judges, for reasons doubtless satisfactory to ihemselves, ordered a new tariff of Sheriff's fees, by which the disbursements paid by the attornies to those functionaries, and the fees receivable by them on executions, were practically raised from 25 to 33 per cent. The well known fact that the net income of some Sheriffs, with purely ministerial duties to perform, was already equal to, if not exceeding, the income of the ablest and most hard- working members of the Bar, and in one District, at least, exceeding that of the Puisne Judges, might have induced a doubt of the necessity for any alteration of the tariff in an upward direction. For every case tried at every assize in the Province the attorney pays one pound to the Judge's clerk, for performing a duty of the most purely mechanical and easy kind, and thus often enabling a clerk of assize on a good circuit to return home, after a pleasant lounge of a few weeks, with a heavier purse than the ablest counsel on the circuit ; £1 is paid to him in many cases in which the fee allowed to the counsel who con- ducts the case would be only JEI Ss. or £1 10s., and nearly an equal amount is paid to the same functionary in criminal trials. When it is considered that this fee, always paid by the attorney and only one out of a dozen other disbursements, is often a tenth of the whole costs of the cause, the public may begin to understand that the attorney does not pocket all the alleged' exorbitant law costs. It will be for our Law Reformers to consider whether such disburse- ments as those last mentioned, with many others, could not be advan- tageously reduced to one-fourth of their present amount. Some idea may be formed of the magnitude of these disbursements from the fact that about thiee thousand pounds are paid every year into the Crown Office at Toronto by the attornies, without reckoning the Deputy Crown Offices in every County and the various County Courts. But it is beyond the bounds prescribed to these remarks further to pursue this fruitful theme. I now pass to those reforms which directly effect the attorney's own fees. Without pretending to anything beyond an approximation in the way of figures, I have no doubt that I am more likely to be below thaa above the mark, when I state that the Upper Canada attornies disburse to the various Government Officers, Clerks of the Crown and County Courts, Sheriffs, Clerks of Assize, Clerks in Chambers, &c., &c., annually twenty thousand pounds. This amount is, of course, chargea in their bills of costs, without being in the least degree a benefit to themselves. They are thus made the collectors and accountants for the Crown and its Oflicers, and have to bear all the odium of receiving the whole of this very heavy sum to their own use, while the red receivers are wholly withdrawn from the public gaze. Last term an order was made by the Judges, under the acts of last session, abolishing the notices on processes served on defendants. This change deducted fully ont-fourlh off the attorney's fees on every writ he issues, and its magnitude can be understood when I state that it makes a difference to tb^ public of at least two thousand pounds a year, or more than the whole expense of the new Court of Common Pleas, with its extra Judge, Clerks and Officers. ( 6 I propose that all the parties to a note, bill or bond, for any amount over £100, may be joined in one action, as they now are in cases under that amount. I propose that it shall be imperative on Attornies to take the cheaper and speedier course of computing all notes, bills, bonds, &c., &c., before the Master, instead of leaving it in their power to do so, or to assess the damages before a Jurjj as is now their option. This alteration would relieve the Assizes of much useless trouble, and save a very large amount of costs. I consider it to be highly advisable, and quite practicable, to effect a very large saving to the public, and materially to ameliorate the whole process of collection of debts by devolving on the Judges in Chambers a very large portion of the duties now performed, at a heavy sacrifice of time and cost, by the combined action of Courts and Juries at the Assizes and County Courts. At present, if a suit be brought for goods sold, money paid, lent, work done, &c., &c., both where the defendant enters no defence, and where he puts in a plea of denial, merely to gain time, it is absolutely necessary to assess the damages and prove the amount due before a Jury. The same course is necessary where a plea for time is filed to a claim on a note, bill or bond. This is, in my judgment, a most thoroughly useless waste of time I propose to expedite all such cases, and reduce a most important ratio, by allowing a plaintiff in all and money. their costs in . . . ... such cases, after defendant's plea is filed, or where he makes no defence, to apply to a Judge in Chambers, on an affidavit, slating his cause of action, and that in his belief there is no real dispute between him and defendant as to the fads. Tfie Judge could then issue his summons, calling on the defendant to show cause forthwith why he (the Judge) should not, on a day named, proceed to take evidence of the plaintiff's ciaim for the amount due, and sign judgment and issue execution for tlie amount. If the defendant can, in answer to the sum- mons, show any reasonable grounds for believing that there is any fact, bona fide in dispute between him and the plaintiff, then the case should go in the ordinary way to a Jury ; if not, the plaintiff's witnesses could attend the Judge in Chambers, give their testimony, and the judgment could be readily signed for the proper amount. By the adoption of this course I would relieve the Juries at the Assizes and County Courts of more than half the business on which they are now employed, and would effect the double object of expediting the progress of a suit and saving the defendant from a large amount of cost now necei