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F,n m^ A T'-^f M-- ►» *^ ^. .. :ii:2 CHAMBER OF THE ASSOCIATION OF THE BAR. ^ REPORT ON THE STATE OF THE ADMINISTRATION OF «3jr 'C^ ^ "C? 22 C^ S^^ To the Members of the Association OF THB Ut 0^ (M/bontteaB. The Committee whom you named on the 23d day of February last, have the honor to make the following report : — At a meeting of the association held on that day, the following resolution, proposed by Mr. Lafon- taine and seconded by Mr. M'Cord, was unanimous^ ly adopted, that is to say : " That the state of the administration of justice " on the civil side of the Court of King's Bench for " the district of Montreal, and the number of cases " submitted for decisionlTow in arrear, demand the " immediate consideration of the bar, that such sug- " gestions or representations may be made, as the " case may require." ■''^^ — 4 — In proceeding to discharge their duties, your committee have necessarily taken into consideration the general bearing of the foregoing resolution, as well as the objects contemplated by the association when it was proposed. But without exceeding the limits presented to them, your committee found the field too wide and the legitimate subjects of enquiry pressing upon their attention too numerous to be all embraced within the short vacation following the February term. Many important points being there- fore, necessarily overlooked, the association will resume its labors in some future vacation. We have discussed some grave questions con- nected with important reforms in the judiciary ; but we deemed it advisable to postpone their further con- sideration, that we might be enabled to meet the views of the association on points more especially concerning the present state of the administration of justice in civil matters. These questions being moreover connected with the whole judicial system of east Canada, we resolved to suspend our opinions until the members of the profession in the other dis- tricts could be consulted. With this view your committee would suggest the propriety of corres- ponding with them. In the opinion of your com- mittee, this measure is calculated to unite the mem- bers of the noble profession to which we belong, and will enable us to sustain and vindicate its honor and its rights. Having submitted these general considerations, 5 mw -\ your committee will now record its opinions on the abuses which unhappily exist in the administration of justice m the Court of King's Bench. This is not the first occasion on which the bar of Montreal, influenced by a sense of duty towards the public, has complained of the existence of evils which manifestly affect the whole community. * About two years since, yielding to the rightful claims''" of our clients and of the public, we made a respect- ful representation to His Excellency the then go- vernor general : a representation which, we regret to say, was attended by no results. We freely admit that the abuses for the relief of which it was made have increased : but the adoption of such a measure , being all that it was competent to the bar to do for' their repression, neither their existence or increase can be inputed to the profession. Your committee are prepared to acknowledge that to a certain extent our judicial system was inadequate to the wants of this populous district. But having traced to their source the subjects of your reference, we have arrived at the conclusion that they spring at least as much from the actual J incomplete, insuflScient state of the Bench, and the / consequent inefficient performance of the duties de-l volving on it. We are therefore compelled to bring! this latter fact prominently under your notice. In the first place, four judges are required by law for this district-, as well as for that of Quebec. That district is less populous, yet it has four eflicient — s judges, while we have been long deprived of that advantage, aUhough we need them more. This flagrant violation of the law is productive of incalculable injury to the community, and has existed for a length of time. We are as yet however ignorant of the motives by which the executive government can have been induced to postpone the appointment of a judge in the place of the Honorable Michael O'Sul- livan, who departed this life some three years back. Our district has suffered, and is daily suffering from this cause, and we shouM^be grieved to find that this vaoancy had been ,lept' open under the advice of persons influenced by iiiterested and selfish mo- tives. Let the cause of this vacancy however be what it may, it amount^ to a complete denial of jus- tice tq>thi^' disTrict, and' the authors of the measure ^ave "consequently incun-ed a great responsibility. On the other hand, althoi^h there are actually ttiree remaijiing judges, we cannot be said to have a corresponding number .of efficient functionaries. Your committee w^ould jiowejer forget alike their duty and a due regard for the feelings of justice and .gratitude of the bar were thej' to omit, in the first place, to record their sense 'of the well known zeal of Mr. Justice Pyke in the discharge of his official functions. Accordingly, they willingly testify to the •urbanity and benevolence with which that dignified ■ magistrate has invariably acted towards the mem- bers of the profession. Having thus offered a tri- ,t bute of regard for his good qualities, we are not the #p V I — 7 — »W< m% less compelled to admit that from his advanced age, his infirmities and impaired health, he can no longer acquit himself of his official duties in the efficient manner which he is presumed to desire, and which is indispensable for the public good. His exertions are most laudable, yet his recent absence from chambers during nearly the whole vacation, and his presence in court during no more than six days of the last term, would seem to prove that the weak state of his health, aggravated by his daily labors, forbid his effecting the object which he has in view. Zealous and animated by the best intentions, Mr. justice Pyke has undoubted claims to an honorable retired allowance. From the delicacy natural to him, he may shrink from soliciting that allowance, but your committee hold it to be the duty of the ex- ecutive government not only spontaneously to grant it, but to respect in their fullest extent the claims on the consideration of the government, which, by his position and his services, he has acquired. When he thus retires from public life, Mr. Justice Pyke will carry with him the sincere assurance of the res- pect and esteem of the members of the bar. The number of cases in arrear at various stages of litigation has been more or less considerable at dif- ferent periods. Desirous of obtaining accurate data, your committee applied to the prothonotaries for in- formation ; but your committee have to regret, that from wan^ of sufficient time, those officers have been unable to supply the documents essential to the at- / — 8 — tainmcnt of the desired end. Your committee feel- ing the necessity of reporting promptly, were conse- quently compelled to rest satisfied with a sene-al reference to facts. Happily, however, the members of he bar have a personal knowledge of these facts, and they are for the most part matters of public no- toriety There have been complaints before this day of the state of the business in the Court of Kin-'s Bench of this district. At one time, the multitt.de of causes fixed for evidence in vacation was so prodigious, that the Legislature provided for the appomtment of two Cmmmssaires EnquMears: but on the termination of that offic . there was a fresh accumulation of causes for enqufites Subsequently the Court of Reque;ts was created. Th,s was considered msufficient, and it was deem- ed expedient to create a commissioner to hold the Inferior term of the Court of King's Bench, and to preside at the '• enqufites" of the Superior term, as well as at assemUees de parents Sfc From that period, the judges were exonerated trom the performance of every duty, save that of hearing and of determining causes in"' ftJ Superior term ; and it was naturally expected that they would have decided upon those cases pronpt>. or at least within a reasonable delay. Unhappily, this just ex- pectation has not been realized. We have 'c ad- duce as evidence of our disappointment, a multitude of causes fully heard, which have beea submitted for fe ? lO-'s — s — . judgment, and have leen ke^ ^ under consideration by ^,he judges not only for a period of a few months but tor whole years. In point of fact, the members of the bar have been compelled by these circum- stances, during entire terms, to abstahi from ar-uino- contested cases in order to afford the .udge.^'suf.i! cient leisure to decide upon those previously sub- mitted for judgment. Yet notwithstanding the appointments thus made witn a view to diminish the labors of the judges, the accumulation of cause? in arrear in their hands has increased, and is now greater than it was before. ItA^se are not exaggerated statements. On the contrary, they are strictly true, and seeing as we have done the ruin in .which these arrears have involved numbers ofour clients, we deem it to be our bounden duty aU^th to disclose the truth. Your committee «;^ also direct your attention to the rules of practice. Obscure, vague and un- connected with each other, these rules are some- times disregarded as a dead letter by a part of the b.nch, some times revived by another part, so as to arrest the course of proceedings, or to throw the whole into confusion. Endless discussions on mere points of form which could not otherwise arise ne- cessarily ensue, and this your committee would ob- serve is a great obstacle to the despatch of business. The duties devolving respectively upon the judge and ihe advocate necessitate a daily intercourse m relation to which the latter has no option, and a y r ( ■<. 10 which your committee are desirous of placing upon a satisfictory footing. In dwelling upon this topic so far only as may be necessary to attain that end, your committee are not moved by considerations affecting themselves alone, but by the unquestiona- ble influence which the nature of that intercourse must exercis: over the despatch of public business and the character t)f the administration of justice. In this latter point of view it cannot be denied that the temper and deportment of the judiciary are subjects of great public interest. Your committee therefore cannot refrain from ; complaining of the habit of interrupting the members ■! of the profession in which the judges indulge, a ha- bit which your committee must characterize not only as injudicious and uncalled for, but as having dan- gerous tendencies. On this subject your committee submit the following extract^xmi a recent publica- tion of acknowledged merit. " Si la profession d'avocat a ses honneurs, elle a " aussi ses desagrCmiens. Le plus sensible celui ^' contre lequel les avocats de tons les temps se sont " le plus recries, et qui a parfois excite leurrencune " et leur animosity contre les magistrats, c'est d'^^re '' mterrompus mal a picpos et rabroues a I'audience " sans I'avoir merits. " Ces interruptions sont d'autant pins flicheuses qu elles amenent quelque fois entre I'avocat et le *^' juge, ou le ministere public des altercations au milieu desquelles I'amour propre joue, de part et / II 1 't -ta pas 6t6 i.bre,e. I'on se refuse ^ croire A l'imparUabilit6 ^^ d «n juge qu, n a pas m&me eu la patience d'6cou- i6r. But there are other subjects of complaint. Ai- thot^gh ,n repellmg aggression your committee might doubtless p.-occed to great lengths, they will ^o imuate what they consider leprehensible. Tl 'ey de- sire ,0 convince, but they are unwilling, even in self defence, to mortify or oITukI. Acco.'dingly, h y specify facts or designate persons. But they mus^ enter the,r protest aga,nst the tone of pe.ulanc'e a„d eholer, heretofore assumed by a part of the judiciary, and as a matter of right, they claim for ,he bar. bo^ ■■ ' m chambers and in the court entire immunity from offensive language and demeanor. / / — 12 — Having thus as they hope temperately as well as firmly enunciated their opinions, and asserted M'hat they hold to be their rights, your committee would not be understood to mean to detract from the pow- ers for preserving order justly entrusted to the ju- diciary, nor is it intended to countenance, much less to inculcate any course of conduct at variance with the respect due to the judicial office. Owing in part to the above mentioned abuses, a great number of causes on the roll for hearing can- not be argued, and remain over from one term to the other. The last term furnished a proof of the existence of this evil. Indeed from the operation of the same causes, and from the fear that their cases would be kept so long under consideration as possi- bly to necessitate a rehearing, many advocates have fpreborne from inscribing their cases for argument. / The want of uniformity in judicial decisions is felso much and widely felt. Indeed they vary so /much, so much uncertainty prevails upon this sub- ject, that we maybe said to be w'thout any rule whatever. Your committee are of opinion, that were the judges held to record in every judgment the grounds of their decision, this evil might be cor- rected. We should thus have a series of prece- dents fixing our jurisprudence, an object conducive alike to the interests of the public, and of those who havetl evoted themselves to ihe study of the law. The constitution of the Court of Appeals is a grievance, as is also the uncertainty pievailing in the \ / 1 II \\ 1 \ — 13 — organisation of the various civil courts, in conse- quence of late enactments The institution of Inte- ferior District Courts is very recent ; yet ihtre are complaints not contined to the doubts and 'uncer- tainties necessarily arising from liie appointment of one judge for several districts. There is however at least one evil relative to which no difference of opinion can exist, either among the public or among the members of the profession. It is the multitude of inferior local judges, adjudicatino:, unconnectedly and necessarily creating as many distinct systems of jurisprudence as there are individuals. Your com- mittee freely grant the necessity of carrying justice into the rural districts at fixed periods. But they are of opinion that this end could have been more effectually attained, and the wants of the community more fully supplied by legislative modifications of the exisdng system, and without creating such a number of judges. Your committee would here remark, that in April 1840 the bar of this district published its views on this subject. Hence it is un- necessary to dwell more particularly thereon. The tariff of fees has also engaged the attention of your committee. The mode of taxing costs which has hitherto obtained, has entailed much loss of time both on the judges and on the profession. Your committee are therefore opposed to the spe- cification in the Bill of every item in detail, and they prefer a tariff upon the principle of a fixed re- muneration adapted to each class of cases. The / — 14 — present tariff, like the rules of practice with which It is connected, is susceptible of various interpreta- tions, and the fatiguing as well as unpleasant dis- putes incident thereto, would thus be avoided. With this view, your committee have deemed it incum- bent on them to prepare a new tariff, founded upon the prmciple of a fixed and determinate fee in all cases. It is in fact that which was presented to the judges for their approval in 1836, with such modifi- cations as existing circumstances and recent enact- ments have rendered necessary. It accompanies the present report. Your committee consider it incumbent on them to make a iexv observations on this subject. They have proceeded upon the principle that the Sheriff and the Prothonotaries should have a fixed salary In the opmion of your committee, this salary should be less than that of a judge. The labors of these officers being purely mechanical, it is not fitting that they should be better paid than the judges, whose responsibility and whose duties are of a much more important nature. It has been long known that the amount of the several incomes of the Sheriff, of the Prothonotaries and even of the criers were exces sive, and out of all proportion with the nature of their functions. The whole of the responsibility at- tending a case falls upon the advocate. The suitor has no relation with any other person, and the mo- ney needed for the prosecution of the suit is paid to the advocate. The suitor is thus led to believe that «• 1 c c «!• — 15 — these funds go into the pocket of his attorney, when m fact under the system now pre,ailing, the a^tor- Sr"-'^""^"'"-'"^ *e prothorotaries, the sheriff, he cners and the Bailiffs. Then in the event of ultimate loss, these officers neve" suffer and the whole burthen falls upon the attorney ' In the opinion of your committee, the salary of he cr,ers s ould be fixed in the following " opo . .ons namely : one hundred and twentytive pounds "crt?'yr ''' -^"""^^ ^or^ach'r: thauLr^fficirr^rr:''' '''° ^^^ .t:i:i:frp:oti:r^'-^"'--- ordraroffi™' "'"^ "■^''■^"^'^ '" '"'^ °f *^^e sub- ordmate otficers are, m the opinion of your commit- tee, reasonable and sufficient. Up ,o L day, con- ■dermg the nature of the offices they have to per- mous Thts has been the subject of remonstrances .' nd ,t ,s a matter of astonishment that these who had "^ the power of correcting this evil have failed to do so The office of Sheriff will be hereafter more pr-' ticularly mentioned under a distinct head Some members of the profession suggested the propnety of mstituting an enquiry Into ,'feoMsi,! curred m the police office a, d in tl,a,,f,|. . ojihe peace ; b„, while your c..n,mit,ee adn.ii the existence oi sufficient cause for such enquiry, they 16 — have been unable, from want of time, to adopt that measure. In their opinion it should hereafter en- gage the attention of the association. INDEPENDENCE OF THE JUDGES. The purity of the administration of justice is the safeguard of the rights, liberties and property of the subject. Profound legal information is not more ne- cessary in a judge than that the public should re- pose confidence in his impartiality, in his rectitude and honor. In the absence of this confidence, his judgments have no moral force. They are conse- quently deficient in tl c most important requisite, the power of carrying conviction, and the judge is deprived of his most ennobling attribute from the instant that the suhor doubts whether the dispenser of justice " pronounces a decision or renders a ser- vice." To confer on the judiciary that moral pow- er, seems to your committee to be one of the first objects of every good government ; and your com- mittee can perceive no other means of attaining this end than by rendering the judges independent at once of the court and of the people. A judge sub- ject to the controul of the executive, and exposed to the loss of his commission if his decisions, however legal and conscientious, are unpalatable to the executive, is obnoxious to the suspicion of conferring benefits when he should be pronouncing decisions. As this suspicion is destructive of all »m t i i — 17 — confidence in the purity of the motives of the judge, it is necessarily subversive of all respect for the ad- ministration of justice. To obviate consequences so deplorable, your committee suggest the proprie- ty of making a change in the tenure of the judicial office, and of substituting the words " during good conduct," instead of « during pleasure," in their commissions. Your committee would conclude this part of their report, by expressing a hope that during the next session of the legislature, the independance of the judiciary will be placed upon a proper foot- ing ; not, however, without making adequate provi- sion for their trial and punishment, in the event of misconduct. In the opinion of your committee, however, no measure of this kind would be complete unless pro- vision was also made for enabling a judge to claim and obtam a retiring allowance after fifteen years of service. Your committee further admit the justice of granting a due proportion of that allowance to any judge compelled by sickness or accident to re- sign his office before the expiration of fifteen years. Your committee, however, protest against the appli- cation of this principle to any other class of the public officers. The attention of your committee has been called to another subject interesting alike to the profession and to the inhabitants of this colony. No doubt can be entertained of the right of the crown to nominate to office, but if this branch of the prerogative be ex- — 18 — ercised jniuc!^^ regard to merit or to public opinion, it becomes a just subject of com- plaint. On such occasions, the bar is bound to as- sume such a position, to make such representations, and to take such steps as the circumstances of the case may require. It is indeed our duty to maintain our rights and those of the public, not only as mem^ bers of the profession to which we belong, but as part and parcel of the people of Canada. ' Whether we turn to the profession, or to any other species of industry, the prospects of the colo- nists are bounded by the colony. Their sphere of action is confined to the province ; they can indulge m no hope of advancement unconnected with the Af- fairs of their native country, and the form of colonial ■government under which they live. Your commit- tee maintain that from reasons founded in justice and in public morality, in the appoi: .lents to office the colonists are of right entlded to a preference' ; and they regret that in departing from this rule in , favor of recent immigrants necessarily unacquainted with our habits and wants, no other title can be dis- cerned, no other claim set up than such as flow from mere court favor. Your committee would further record their opinion that the superior offices connected with the administration of justice should be bestowed only on such members of the profession actually practis- ing as have, in the course of their professional ca- reer, secured the esteem, respect and confidence of .1. I ■f j — 19 — their brethren and of the public. Such appointments are due, not to favor, but to professional merit alone : and the bar'must suffer under the painful sense of the injustice done them, whenever such offices are conferred on persons who can only pretend to be members of the profession because they have a li- cence, and who have never had any relations with their practising brethren. The recent appointment of Mr. W. F. Coffin to the situation of joint Sheriff with Mr. Boston, is an example of this abuse. Mr. Coffin may not be without personal merit ; but as a lawyer, he is, so to speak, professionally unknown. Your committee have consequently unanimously condemned his appointment as unjust, and subver- sive of the rights of the profession. THE SHERIFF'S OFFICE. For many reasons, this office necessarily attract- ed the attention of your committee. Connected as it at present is with our judicial system in civil mat- ters, its existence is due to various provincial en- actments, made, no doubt, to facilitate the admmis- tration of justice. It has, however, had a contrary result ; and while it has been productive of delays, not only always unnecessary, but often injurious, it has had the effect oUmposinga tax upon the public and especially upon debtors, a class already but too unhappy. The burthen of the enormous charges, and in fact impost levied by the sheriff under the name of fees, is felt not only because its amount is — 20 excessive, but because it bears no kind of proportion to the duties which that officer performs. This opi- nion is the result of the experience we have acquired during our respective professional careers but it is not new. It was recorded in the year 1836, in the second report of a committee of the House of As- sembly of Lower Canada, named to inquire into the fees of the several officers connected with the ad- ministration of justice. The passage in question, is to the following effect : — " Your committee also think themselves justified " in remarking, that the office of sheriff in this pro- " vince, as far as relates to civil matters, is a place " of new creation, which, instead of rendering the " administration of justice more easy and less ex- " pensive, has the contrary effect, by multiplying " the proceedings and the number of officers em- " ployed. ~ " Your committee are of opinion that these in- " conveniences would disappear (to the great ad- " vantage of the public) if the prothonotaries were " invested with the powers now assigned to the " sheriff with regard to civil matters." Being entirely of that opinion, we do not hesitate to declare that the office of sherifT, in civil matters, should be abolished, and that the duties of that office should be performed by the prothonota- ries. As a measure of economy, and as tending to remove a cause of unnecessary delay, such a change would be very beneficial. tMft^ wAk ~ 21 — % The functions of the sheriff should, in the opinion of your committee, be confined to the criminal side of the court, and he should himself receive a fixed salary. Yet so long as the system at present in force exists, and so long as the sheriff continues to be an officer on the civil side of the court, your committee feel assured that one officer suffices for the dis- charge of all its duties. Indeed we have experien- ced greater difficulty in transacting business in that department, when there were two incumbents, than we have had since Mr. Boston filled the office alone. We have even known of well founded complaints originating as we believe in the mere fact of there being two incumbents, or in the division of labor be- tween them for their own convenience. Your com- mittee avail themselves of this occasion to acknow- ledge the urbanity and obliging deportment of Mr. Boston towards the members of the profession. Having demonstrated the advantages flowing from ihe appointment of a single sheriff*, your committee are confirmed in their view by the reasons assigned for the appointment of Mr. Coffin as joint sheriff! If it is true as has been said, that this appointment has originated in the enormous income now apper- taining to that oflTice, your committee would stigma- tize as immoral, the countenance thus given to a se- rious and int '.erable grievance ; and they condemn it as being in fact the - " -,!» of a second grievance not less intolerable thax. ^ irst. Since one person is competent to fill the office of — 22 — sheriff, and since the revenues now attached to it are nu.'or.ously enormous, your committee are of optnton that the only remedy for this evil is to be found ma reduction of the fees heretofore charged by that officer, as well as of the commission of two and a half per cent allowed him on all sales of real property. They he 'd that this reduction should be made so as to ensure some proportion between the du.es and the advantages of the office, an ) that at this crisis itis imperatively called for both by credi- tors and debtors. J -"l-Ul The judges of the Court of King's Bench had he power to remedy this abuse b/modifybg the ariff, which thoy have failed to do Thisi tote regretted more particularly as in the vear IS^aIT requested the profession to prepare foth' apt' Z I'dThilr'r ""'^^ was'according^Xt ed, and which, if sanctioned, would have produced he desired result. This fact ha. been recorded for ne double purpose of protecting the bar from unde- ser ed censure and of placing the responsibility! hose who, having had the power, and being bound to exercise it, neglected to do so. It may be incumbent on the committee to antici- pate an objection to the course which they recom mend, founded on the proh •.„,- of Z ZlT deathofthesheriff. Shi., eittiertem t^t" ^ f^e made by the appointment of a deputy, with now ers commensurate to die exigency ofthe else ' — 23 — BANKRUPT COl HT Tour committee, in thefulfilme.t of the duties imposed upon them, feel themselves imperative caled upon to advert to the Bankrupt lawin ?orce m th,s province, and to the constitution of the bank rupt court, in which so many and important intere's" are now a stake. Laying aside the many gfav ^e flections which the uncertainty of the law itself forel 'ng some of ,ts most important enactments, your committee would advert to the total absenc of anv rules of practice concerning the course of procedure to be observed before that tribunal. NoAing "an be more clear than that the total absence of uls o guide the practitioner or the suitor in that tribunal IS in Its operation equal about to an absolute surren- as it i in",r°" ""''. ""' "^" ^^'^''"*^'' "ghts, as It IS m the power of any commissioner to deter- mine and adjudge all questions before him in such manner as the caprice or whim of the moment m J dictate, leavmg the litigant in matters appertaining to form, (well known by all practitioners' to be in many respects paramount) wholly without remedy. As this court IS now constituted, it is therefore of he first importance, that certain rules of practice should be immediately established to guide the prac! titioner and suitor not only in the bankrupt court it- self, but m the manner in which appeals from that court should be conducted. — 24 — Your committee more particularly regret the ab- sence of this essential requisite, as the court of bank- ruptcy has now been in existence and in operation for a period of nearly two years, and those most in- terested in the proceedings before that tribunal, and the bar generally have been thus left in a state of the most absolute uncertainty than which your com- mittee can conceive no greater evil. Your corimit- tee therefore consider that this subject calls 1 )r an immediate remedy, that the r-Jblic may no longer suffer from the absence of properly setded and defi- nite rules, which can alone render the bankrupt sys- tem efficient and beneficial. Another great want in the bankrupt court is to be found in the absence of a tariff of fees, although the law determines what shall be the fees of the commissioner and the per- sons employed by him in the necessary discharge of the duties of the officer, there is nothing to guide the practioner either in the court itself or in appeal to the court of King's Bench this your Committee consider a proper subject for the consideration of the bar with a view to a just and settled course of practice before that tribunal. These suggestionSyour Committee would offer to the immediate consideration of the bar, as those which naturally present themselves-in viewing the Bankrupt Court as it is at present constituted. But your Committee would urge upon your attention the necessity of an immediate change in the consti- tution of this court itself. ^^^ — 25 — '■- The Court as at present constituted altogether fails to carry out the provisions ofthe law or the intention of the legislature m giving a system of Bankrupt law to this Province. Instead of a court of justice, where the rights and interests of so important a parJ of the :,commumty as that devoted to commercial pursuits ^ is, are openly investigated there is substituted a pri- ■ vate chamber divested altogether ofthe appearance even of a court of justice, where a Commissioner of i3ankrupt with a power almost omnipotent disposes of the most vast and important interest which call for judicial mve 'igation without any check whatsoever and without those wholesome restraints, which even public ln^ estigations necessarily afford. This in the opinion of your Committee is an evil of the verv greatest magnitude and calls for an immediate re- medy. Although the bankrupt law has been in ope- ration only a short time, it has existed long enough to demonstrate that the most important interests in this proviuce will i„ future be there adjudged upon and If the present system is allowed to continue i[ TviU entail an evil upon this province which it will take years to remedy and which even legislature pow- er may fail to remove. If it be allowed to grow and take root it will in spite of all obstacles become incor- porated with our judicial system and mischeivous re- sults arising therefrom may prove incalculable be- fore a remedy adequate to that removal can be found. It IS of infinily greater importance, and a task com- paratively easy to alter or remodal the constitution ^/ — 26 — of the court in its present unsettled and plastic state than to wait until it has vigorously taken root and then be obliged to overturn the whole system in en- deavouring to find a remedy. • - ^ In the opinion of your committee the Commis- sion of Bankrupts ought to be a joint commission and ought to hold regular and public sessions, in a hall of Justice adequate to importance of the business before it. The powers conferred upon the Com- missioners of Bankrupts are powers of a judicial nature. They hear and dispose of the causes < brought before them and of the fortunes of indivi- duals in a summary manner, and in many instances with uncontroled powers, and although, the lav. gives to the parties aggrieved an appeal to the Court of King's Bench, the forms necessary to be observed to obtain the benefit of an appeal, are so uncertain and undefined, as in the opinion of your committee, to render an appealin many instances almost nugatory. A court held in the private cham- ber of a Commissioner of Bankrupts disposing of the fortunes of individuals might under other circum- stances excite a smile ; But your committee feel the subject to be too grave to be treated with levity, and would impress upon the Bar, the necessity of using the most energetic means to procure a change in the organization of a Court, destined at no dis- tant day to exercise an almost exclusive jurisdiction over the affairs of an important branch of the com- munity. t — 27 — fi Your committee feel that the Court as at present constituted does not command public confidence, and must fail to do so, so long as it is allowed to ex- ist with its present glaring defects. Your committee would also express their opinion upon another defect of the Law involving very important consequences. By the present Law, the Bankrupt Commissioners are allowed to practice in all cases which do not relate to the matters in litiga- tion before them. Although this t. > the framers of the Bankrupt Law may have been considered a suffi- cient protection to the public, in restricting the prac- tice of the Commissioners to matters altogether dis- tinct and apart from the business before the Bank- rupt Court, your committee feel bound to dissent from this view and to declare that a more dangerous practice cannot be conceived. Without intending in the most remote manner to impugn the character of the gentlemen holding the situation of Bankrupt com- missioners, your committee feel bound to declare that in their view, the Bankrupt Commissioners clothed as they are with judicial powers, ought not to practice in any Court whasoever. The most careless observation must point out the danger of allowing a Commis- sioner to adjudicate upon matters before his Court, upon which he may have been previously consulted by any cliant interested in the application of any Bankrupt before him. What security therefore exists for any individual whose whole fortune may be at stake, before a Bankrupt Coinmissioner whose — 28 — opinion may have been previously takpn .. i upon any questionable point s,l f ! ^'''^'' fl • ^ X '^iuxiienrs ot the office art^ nnf cnT salary to the office suitable (n tli« ; duties to be performed TV , "P""^"'^'' °f "'« tend to restore publi::U;:r:Te."''^^°"''^"'' Commissioners by TeTLT"!- "■ ^"'""P' fruitful source of e'vii and d^^Z^Ttr";!;" « by afforCin, opportuS:" , "^^^rtt Jfinuely the settlement of Bankrupt E^eTZ thereby to multiply costs to an alarmi n'g exte The ch.e object of a Bankrupt system is t^o aJd faciU rehef of honest but unfortunate debtors. But a sys! adt™ r "i" "'^P— ^-y Commissio^r adjourn from t,me to time the investigation, to — 29 — different fro« ^o 1^^ -de^ very introduction of the S ,1:,'^ ""^'^'"^d ^y the -on that the