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'^^•sis..^ >^>*v>e!-
'te?mv^^i^^
REMARKS
1 1 >
ON THE
PROPOSED ABOLITION
OF THE
COURT OF CHANCERY.
FROM THE COLUMNS OP THE CHRONICLE AND NEWS.
" Judi Alteram Partem.''
KINGSTON.
1851.
FlOZE
I PREFACE.
In offering the following remarks to the public in the present shape,
the writer is not induced by any idea that they possess in themselves
any merit that entitles them to much lavor — for he does not suppose
that they contain anything that was not before known to the well
informed part of the community ;— but whether known or not, there are
in them many facts which might have been and v-'C-e not urged on the
representadves of the people when the subject was before the House of
Assembly. The amount of ignorance betrayed by those who attacked,
and the very weak defence offered by those who defended the Court as
now constituted, ought to be quite a sufficient excuse for the humblest
pen endeavoring to disseminate some information upon the subject.
Whether any arguments contained in these few pages are at all entitled
to weigh with the public in deciding on a question which will doubtlessly
be brought before them at the coming election, the writer is content to
leave to the judgment of that public ; he has, however, been careful in
obtaining, from what he deems reliable sources, the facts that he lays
before his readers ; and if the conclusion he arrives at from those facts
is not a correct one, he nevertheless considers that he has attempted a
laudable task in collecting those facts in the shape he now submits them,
to enable his readers to draw from them such conclusions as they may
deem they warrant. Limited space, haste, and the interruption of
numerous engagements, must be his excuse for many errors in the
execution of that task, which he sincerely regrets had not fallen to better
and more competent hands fo discharge.
Ii8118
COURT OF CHANCERY.
We have given in our columns to-day the report of the de-
bate on this important subject — for important we deem it in
considering the results to which it might and may yet lead,
though very unimportant and unsatisfactory in the amount of
information it affords the public, and the acquaintance the
parties to it displayed with the subject under discussion.
We candidly confess that we look upon it as a most reckless
and ill-considered attempt on the part of the restless mortal
who introduced it, to interfere unnecessarily with the adminis-
tration of the laws of the land. We forbear for the present to
remark upon the part taken by those who voted for the present
motion, after having aided in establishing the Court as now
constituted, or of those who would pander to popular prejudice
and make political capital out of this question, without much
regard to its real merits. We propose to discuss it as a question
of deep interest to the public, without regard to party politics.
We care not now who introduced the system, if it be but a
good one : we heed not now who sustains it, if we are convin-
ced it is a bad one. Let us, then, exercise a little patient
inquiry before we abolish at one fell swoop what has cost no
little labor, time and expense, to establish.
The advocates of the abolition of the Court of Chancery
propose to vest in the Common Law Judges of the Province an
equitable jurisdiction, and to do away altogether with the Court
of Chancery as a separate tribunal. We would ask, first, is
such a change desirable ? and why "? and next, is it practicable,
6
and aro the supposed advantages to bo derived from the change
at all commensurate with the risk attendant on hasty interfe-
rence with an established system 1 We arc convinced that the
subject is not fairly understood by that portion of the public for
whom wo write ; and it will therefore not be considered amiss
if we go back a little to consider what perhaps we might fairly
assume — the necessity of an equitable jurisdiction vested in
some competent tribunal ; next, the establishment of a Court
of Chancery in this Province — its progress, working and abuses
— its reorganization, the recent changes and their effects, with
the present practice ; and having done this, with an earnest
endeavor to
" Nothing extenuate or set down nught in malice,"
we shall contentedly leave it to those who may favor these
remarks with a perusal to answer the above queries for them-
selves.
When the present province of Canada West was empowered
to make its own laws, its first act was to enact that the then
existing Common Law and Statute Law of England should
become the law of this Province ; but it was not then consid-
ered necessary to establish a Court of Equity, the transactions
of a community then in its infancy perhaps not being found
sufficiently complicated to need it ; but as increasing wealth,
numbers, and refinement, rendered more intricate the dealings
between man and man, the want of an equitable tribunal
became sensibly felt. It may be considered that the want
could then have been supplied by vesting in the Common Law
Courts equitable powers — by deciding law-suits on equitable
principles, and creating a mixed system of equity and law suited
to the necessities of the country ; but such an idea can only, be
entertained by those who give to the word equity the meaning
attached to it in ordinary parlance, as equivalent to universal
or natural justice, and as such, distinguished from law. In
the sense in which they receive it, equity was already and still
combined with law, and guided its decisions. To have
is
blended law with equity, in its technical sense, would have
Lhc change
ity intcrfc-
od that the
I public for
ered amiss
light fairly
vested in
)f a Court
and abuses
Fects, with
on earnest
avor these
for them-
srapowered
t the then
nd should
en consid-
ansactions
ing found
ig wealth,
e dealings
ie tribunal
the want
imon Law
. equitable
law suited
in only, be
J meaning
) universal
. law. In
y and still
To have
ould have
involved a codification of the whole law, which, with all the
recklessness that has distinguished Canadian legislation in
<luestions of jurisprudence, was an undertaking no one had the
temerity to attempt. It is not, as some suppose, that the deci-
sions of a Court of Chancery are guided more by the principles
of natural and universal justice, and those of Courts of Law by
rules rigid, severe and uncompromising, that forms the distin-
guishing features between the two Courts, for no such distinc-
tion in reality exists ; but every one must be aware that in the
varied and multifarious dealings of mankind, and the rights
that arise between parties, no rule of general and universal
application can be so framed as not in individual instances to
work a hardship, admit of evasion, or fail to do justice. In
such instances equity (in its technical sense) averts the threat-
ened wrong; for " it has jurisdiction incases of rights recog-
nized and protected by the municipal jurisprudence, where a
plain, adequate and complete remedy cannot be had in the
courts of common law." To afford relief where the powers of
a Court of Law were not sufficient; to protect property, the
subject of litigation ; to enforce contracts binding in conscience
or where damages at law would not afford compensation ; to
prevent mere legal rights being unjustly exercised ; to compel
discovery ; to enforce trusts ; to prevent multiplicity of suits ;
to protect infants and lunatics — were some, but not all, of the
objects for which it was found necessary to establish a Court of
Chancery. Accordingly, in 1837, an Act was passed for its
creation, which introduced all the expensive and cumbrous
machinery of the English court as the rules of practice. This
Court became, in the course of a few years, deservedly unpo-
pular : a course and system of practice which had gradually
grown up in England, where the subject-matter of dispute was
in most cases of great value — where the litigants were wealthy,
and more confined to those classes whose education, judgment,
and knowledge, would prevent them appealing to a court of
justice except in extreme cases, was itself altogether unsuited
to the wants of a youthful community. But few understood
il!
•'I '
i '
8
its proceedings. The head of the Court was wanting in energy,
if not in capacity, for the duties of his position ; and the busi-
ness being in the hands of a few, delays vexatious and harass-
ing to suitors, soon began to create dissatisfaction ; the expense
was ruinous ; and the relief, when granted, often affected the
wealthiest and most influential members of society, whose
former speculations did not on all occasions bear strict investi-
gation ; so that even the good it did by no means lessened the
dissatisfaction that these indignant but not innocent sufferers
by its decrees took pains to spread. That this one cause of the
outcry against the Court is by no means imaginary, could be
readily shown by a comparison of the names of its present
opponents with names of the cases on the records of the Court.
The causes of complaint, real and alleged, were numerous and
great, and created a prejudice which the most extensive reform
has as yet failed to remove.
About ten years after the creation of the Court, the necessity
for[^its reform became strongly felt, and representations of that
necessity were made by the profession of which the supporters
of Mr Mackenzie's measure are members, and in which they
joined. It was easier, however, to cry out for reform than to
point^out in what manner it was to be effected. There were
then no means which in that particular instance could be made
available of removing the head of the Court from his seat, how-
ever unanimous public opinion was as to the policy of such
removal. It was not easy to find any one fitted to discharge
with credit to himself and advantage to the public, those high
duties that would devolve on whomsoever might be called on
to succeed to this office. Under these circumstances, the minis-
try (whose measures in general it is well known we are not too
apt to admire) adopted the only course which we think was
open to them, and established the foundation of the present
Court. In considering the proprie>,y of that act, the questions
that arise are whether any sufficient necessity existed for put-
ting the country to the expense of providing for two more
i\^"%fc- >/•-
in energy,
the busi-
nd harass-
le expense
ffected the
ty, whose
ict investi-
3sened the
it sufferers
luse of the
, could be
its present
the Court,
lerous and
ve reform
5 necessity
ms of that
supporters
vhich they
m than to
here were
d be made
seat, how-
;y of such
discharge
hose high
called on
the minis-
ire not too
think was
he present
; questions
d for put-
two more
Judges, and whether the selection of such Judges was a judi-
cious one.
We will take up the last of these first, and merely say that
the two leading and best members of the Equity bar were
selected to bear judicial honors. Their fitness to acquit them-
selves well and honorably in their new calling is not denied
even by the advocates of the proposed change ; the political
enemies of Mr Blake all admit his talents, abilities and learn-
ing. The shortness of his political existence gave some handle
to the outcry that the appointment was made to provide for
him— that, it was in fact a political job. We were never an
ardent admirer of Mr Blake's political career, but we think
Ml Hincks did him but justice when he defended him from this
charge ; and we know that as far as emolument is concerned,
he was receiving fr* m his practice as large an income as his
salary as Chancellor. Where else, indeed, could the choice
have fallen 1 Colonel Prince, it is true, in Thursday's debate
said there were other men in the House equally well fitted for
the Chancellorship : the gallant Colonel, who also stated that
he only supported the change in 1849 from fear of the bayonets
with which the House was surrounded, was wrong. We need
not disguise, for it is very generally understood, that he alluded
to John Hillyard Cameron. With every respect for the abili-
ties and acquirements of the learned gentleman, we repeat that
the member for Essex was wrong. Mr Cameron was not, is
not, and probably never will be, equally well fitted with Mr
Blake for an Equity Judge ; he has not, we believe, made that
branch of the profession his study, or ever distinguished himself
at the Equity bar. The circumstances of the cases justified the
choice of Mr Blake ; the result has proved that choice a good
one ; and with no very warm feeling either personal or poliUcal
for the learned Chancellor, we feel that on no one else could the
choice have fallen. So much for the Judges themselves. Let
us turn to the other part of the subject, the necessity for three
Judges at all.
As a general principle, we are willing to concede that the
10
business of a Court of Equity can be conducted equally well by
one Judge as by three ; nay more, we even believe that the
nature of the questions upon which the head of the Court of
Chancery is called on to adjudicate is such as aie perhaps better
decided by one mind. But apart from the difficulty before
alluded to, of substituting a new Judge in the place of the old
one, it was well understood at the time, that the new Court
would be engaged on other matters than the ordinary routine
duties usually devolving on it, and that a complete reorgani-
zation, and an extensive and comprehensive reform in its
pleadings and practice, was contemplated. To effect this, the
aid of the extra Judges would of course be very desirable, if not
altogether necessary. But the chief and most important object
of Jlhe appointment of three Judges, and that which at the time
was dwelt on by the advocates of the measure, was the forma-
tion of an efficient Court of Appeal, and the rendering
unnecessary the ruinously expensive appeals to the Queen in
Council. That this subject, which was then looked on as all
important, has been attained, is not attempted to be denied ;
and we are at a loss to conjecture what substitute for the present
Court of Appeal, the supporters of Mr Mackenzie's resolutions
intend to offer. Again, one of the leading features in the
reform of the practice then contemplated, and which Mr
Baldwin stated from his place in the House is about to be car-
ried into efTect, was in the method of taking evidence. Where
formerly it was taken down in writing, in answer to written
interrogatories filed and returned by the Examiner to the Court,
it was proposed that witnesses should be examined viva voce
before the Court. That this change would entail great addi-
tional work upon the Judges must be readily apparent. If, as
Mr Baldwin said, the intention is that they are to go on circuit
for the purpose of taking evidence (and it may be also the
hearing causes in outer districts) , then the necessity for more
than one Judge becomes imperative, as one must always be at
the scat of the Court. How far these contemplated changes
have already been carried out, will be considered hereafter.
-X -^ : / -i
illy well by
je that the
he Court of
rhaps better
alty before
I of the old
new Court
,ry routine
e reorgani-
brm in its
3ct this, the
:able, if not
rtant object
at the time
the forma-
rendering
e Queen in
3d on as all
be denied ;
the present
resolutions
ires in the
which Mr
t to be car-
e. Where
r to written
) the Court,
d viva voce
great addi-
ct. If, as
on circuit
be also the
Ly for more
ways be at
ed changes
; hereafter.
W
However opinions may differ as to the number of Judges
required, it seems clear to us that the reform which was so
loudly called for, could not have been attained without the
appointment of the present number ; and we look on it that no
fair comparison can be made with the Court in England in this
respect, as the difference in the amount of business is not so
great as might be supposed from the difference in the popula-
tion of England and this Province, owing, probably, to all
classes here being engaged in business, or owning property and
consequently liablte to be engaged in litigation. Moreover, it
is one of the crying causes of complaint in England that the
business is always in arrear ; and it was a desideratum to avoid
giving the same grounds of complaint here. Needlessly or not
(but needfully we conceive, as far as we can venture an
opinion) , three Judges were appointed, and provision for the
increased expenditure created by their appointment was made
by the funding of all fees theretofore received by all officers of
the Court, and the payment to them of fixed salaries, less than
the fees had amounted to. As long, therefore, as the fee-fund
amounts to sufficient to pay the salaries of the extra Judges,
which it probably does (in the absence of statistics we cannot
state positively) , the burden falls on the suitors and not on the
public generally. Whether this is a just arrangement, and
whedier these fees, which are now high and form a heavy tax
on the suitor and the practitioner, may not be advantageously
reduced, is perhaps worthy of consideration, but is foreign to
our present purpose.
It behooves us next to inquire whether the promised reforma-
tion has been or is likely to be accomplished ; and if not,
whether the plan suggested by Mr Mackenzie is calculated to
insure it.
A proportion (but not so large an one as is generally suppo-
sed) of the suits instituted in Chancery is for the foreclosure or
redemption of mortgages : it was contended that these at least
could be more expeditiously and less expensively conducted in
Common Law Courts. We presume the speakers must have
J," ,
1^
forgotten at the moment that the present practice enables a
plaintiff in Chancery seeking foreclosure or redemption to
obtain a decree (when, as usually happens in such cases, no
defence is set up) in fourteen days after his bill is fded, and this
at a cost of about three pounds : a reference is at once made to
a Master to calculate the amount due on the mortgage, and the
usual indulgence of six months' time to redeem being extended
to the defendant, the plaintiff obtains his money or an absolute
title to the lands on which it is secured at the end of that period
without further expense. We should suppose it to be next, to
impossible to invent any practice more speedy and inexpensive
than this. But it is not to such suits alone that this new practice
is applicable, but it extends to all the following cases :
"1. A creditor upon the estate of any deceased person seeking
payment of his debt.
« 2. A legatee under the will of any deceased person seeking pay-
ment or delivery of his legacy.
" 3. A residuary legatee, or one of the residuary legatees of any
deceased person, ;eeking an account of the residue and payment or
appropriation of his share therein.
" 4. The person or any of the persons entitled to the personal estate
of any person who may have died intestate, and seeking an account of
such personal estate, and payment of his share thereof.
" 5. An executor or administrator of any deceased person seeking
to have the personal estate of such deceased person administered under
the direction of the Court.
« 6. A legal or equitable mortgagee, or judgment creditor, having
duly registered his judgment, or a person entitled to a lien for security
for a debt, seeking foreclosure or sale, or otherwise, to enforce his
security.
" 7. A person entitled to redeem any legal or equitable mortgage,
or any charge or lien seeking to redeem the same.
" 8. A person entitled to an account of the dealings and transactions
of a partnership dissolved or expired, seeking such account.
" 9. A person entitled to an equitable estate or interest, and seeking
to use the name of his trustee in prosecuting an action for his own sole
benefit.
"10. A person entitled to have a new trustee appointed in a case
where there is no power in the instrument creating the trusts to appoint
new trustees, or where the power cannot be exercised, and seeking to
appoint a new trustee."
ce enables a
lemption to
h cases, no
id, and this
ice made to
ige, and the
ig extended
an absolute
F that period
be next to
inexpensive
lew practice
es :
3rson seeking
seeking pay-
;atees of any
. payment or
ersonal estate
m account of
erson seeking
listered under
ditor, having
n for security
> enforce his
ble mortgage,
1 transactions
t.
;, and seeking
his own sole
ted in a case
sts to appoint
nd seeking to
A
13
In all these instances, then, a summary reference can be
applied for at any time after fourteen days from the commence-
ment of the suit : such reference is made to the Master in the
County in which it may be most convenient for the suitors to
attend, and the Master settles the readiest way in which the
evidence on points to be proved can be taken : in some instan-
ces affidavits can be used, or the oral testimony of witnesses
given : provision is made to insure the admission of the execu-
tion of documents produced, and the party refusing to make
such admission is saddled with the costs of proof: the Master
reports to the Court the result of his labors, and if no appeal is
made, decides according to his finding. In the debate in the
House on Thursday the member forFrontenac complained that
there was no finality attending the decisions of Masters in the
country : he could scarcely be serious in even suggesting that
their judgment should be final. An appeal from the Report can
be made to the Court, as was formerly the case with respect to the
Report of the Master of the Court at Toronto, but such appeal is
attended with far less expense than the " exceptions" from the
Master's Report before in use — the fee on argument 25s., with
the notice of the appeal and reasons briefly stated forming the
principal items of expense : if such appeal is not made within
fourteen days, the Master's Report becomes absolute without
any further steps being taken or costs incurred. It will be
seen, then, that the list of cases in which this summary way of
proceeding is adopted comprises all the ordinary circumstances
under whicli equitable relief is usually sought : the expense
attending them of course varies with the intricacy of the
accounts to be taken before the Master. In ordinary foreclo-
sures the costs will seldom exceed five pounds, and in every
instance the amount will be less than in a trial by jury before
the Courts of Superior Jurisdiction at Law : the time employed
must also vary with the circumstances of the case ; but the
Court generally limits the J 'c within which a Master must
Report, and it lies with the litigant parties to push on the
inquiry with due speed, the relief being at their own doors, and
l! ill
ii!
I
I
14
the proceedings conducted under their own eyes. In few cases
need more time be consumed than in ordinary law suits : there
is no waiting for the Assizes — no delay until " Next Term" — no
waiting for the SherifPs return to writs — no advertising for a
year under a fi fa against lands. In the cases enumerated the
remedy is quicker and cheaper than at law.
But it is not alone in the above instances that important
changes have been made : the system of taking evidence in
rriva voce examinations in open Court has been adopted in the
Home District. The voluminous pleadings that helped to
swell the expenses in former proceedings have been abolished,
and a short and simple form substituted, and the costs generally
reduced to a scale that barely affords a return for the labor and
care necessary in the conduct of causes. The appointment of
Deputy Registrars and Masters in the different counties
throughout the Province has thrown open the practice to the
members of the profession not residing in Toronto, and is cal-
culated to bring the actual and beneficial working of the Court
to every man's door, saving expensive journeys to Toronto, and
enablii: x the suitor to have the business conducted under his
own eye. This change will eventually prove of immense
advantage to the public : that it has not done so already, and
has not been taken advantage of more generally by the profes-
sion, is simply because it has been too recently made to be as
yet fully understood and acted on.
It must not be supposed that these extensive reforms have
been or could have been the work of a day. The present
Chancellor took his seat in October 1849. In May 1850, a
set of new Orders were issued, making numerous alterations in
the practice, shortening the pleadings, abolishing written inter-
rogatories, providing for the admission of the execution of
documents, for the examination of parties to a suit, for imme-
diate reference in foreclosure and redemption suits in the man-
ner we have before mentioned, and lessening the costs and the
delay in proceeding very materially. These improvements are
now scarcely a year old. Before the more recent changes and
the ere
to proc
an Act
set of C
relating
enume
farther
causes
party li
county
faith oJ
that th(
then, b
about a
siderin^
their se
pretend
med o\
deliberr
contenc
or insul
we adr
the spa
Macker
they an
taken p
acquain
to enaL
likely t(
(for ins
of the
Toronto
the pi:a(
at the (
instead
now dis
16
n few cases
mils: there
rerm" — no
Lising for a
merated the
it important
evidence in
pted in the
, helped to
a abolished,
ts generally
le labor and
ointment of
nt counties
xtice to the
and is cal-
3f the Court
L'oronto, and
d under his
of immense
ilready, and
y the profes-
ade to be as
eforms have
The present
May 1850, a
ilterations in
ivritten inter-
execution of
t, for imme-
I in the man-
costs and the
ovements are
changes and
the creation of Deputy Registrars and Masters, it was necessary
to procure an enactment authorizing their appointment. Such
an Act was passed last Session, and in February 1851, a further
set of Orders were issued, extending the operation of the Orders
relating to foreclosure and redemption suits to all the cases
enumerated in the list we have before given, and making still
farther reduction in the costs, and facilitating the progress of
causes ; and since then a Master and Deputy Registrar (one
party holding both offices) has been appointed in almost every
county in the Province. The reform promised, and on the
faith of which the advocates for the abolition of the Court say
that they supported the measure for its reorganization, has,
then, been completed about four months, and was made in
about a year from the first appointment of three Judges. Con-
sidering that business was in arrear at the time of their taking
their seats, and has greatly increased since, it can scarcely be
pretended that an unnecessary length of time has been consu-
med over what must surely have required great attention and
deliberation. Now it cannot, with any show of reason, be
contended that these changes, whether good or bad, sufficient
or insufficient for the removal of the causes of complaint which
we admit to have formerly existed, can possibly be tested in
the space of four months. Many of those voting with Mr
Mackenzie are themselves lawyers practicing in outer districts:
they are themselves scarcely aware of the changes that have
taken place, and have not taken the pains to make themselves
acquainted with the very simple system of practice necessary
to enable them to conduct their own causes ; but this is not
^likely to be the case long, and in the more populous counties
(for instance in this city and at Hamilton) a large proportion
of the business is even now conducted where it arises. In
Toronto, practitioners who formerly confined themselves to
the practice in Courts of Law are seen constantly in attendance
at the Court of Chancery ; and the array of counsel there,
instead of those only whose practice was in tlie Court of Equity,
now displays a full bar, comprising a large portion of the legal
16
talent of the city. The benefit of these changes will be daily
more and more felt. The most tiresome and tedious piocccd-
ings in a Chancery suit occur in the Master's office, and it is
usually there that the delay which has become proverbial
occurs. This part of the cause is now conducted before the
new Masters (except where it may be more conveniently done
before the Master in Ordinary) , and the suitor is at hand to
supply instructions, information, and to watch its progress
himself. To the Masters and Deputy Registrars is delegated
in short all the jurisdiction which the Court can with safety
place in their hands : their powers as Masters are judicial as
well as ministerial ; and a cheap and ready appeal lies from
their decisions to the Court as we have stated above. Now the
proposed resolution of the member for Haldimand is that the
powers of the Court be vested in County Judges. What
earthly difference does it make to the public whether the duties
are discharged by the new Masters or by County Judges, as
long as they are not taxed to pay the stipends '? The County
Judges in most instances would not be more, and m many
instances would be less, competent for the efficient discharge
of the duties of the office; and they have the duties of then-
own courts with an increased jurisdiction to discharge. The
Masters and Deputy Registrars are paid by fees which were
formerly paid to the officers of the Court at Toronto : out of
these one-half is retained for their own salaries, and the other
goes into the " fee-fund" ; they are paid then by the suitors.
It is true that the arrangement as to those fees might perhaps
be altered for the better, but that is a matter of detail which in
no way affects the main question. If one-half of the fees is
sufficient remuneration for their duties, then the fees should be
lessened ; if not, they should be allowed the whole.
There is no reason to suppose that if the business was done
by the County Judges the fees would be less. With regard to
this part of our subject, then, we cannot see that anything can
be gained by transferring the exercise of the powers vested m
the new Masters to the County Judges. We have spoken only
ill be daily
us procced-
e, and it is
proverbial
before the
iently done
at hand to
its progress
is delegated
with safety
judicial as
al lies from
'. Now the
is that the
ges. What
er the duties
Judges, as
The County
nd in many
nt discharge
ties of their
large. The
which were
onto : out of
nd the other
the suitors,
ight perhaps
tail which in
f the fees is
!e3 should be
' •
ess was done
ith regard to
inything can
ers vested in
spoken only
17
of the practice as it now exists ; if the plan of going on circuit
is carried out, suits would be conducted altogether in the coun-
ties where the parties to them reside.
The arguments in favor of the proposed measure are all
based on facts as they existed before the remodelling of the
Court, and either in ignorance or disregard of the reforms we
have described. That the prejudice created by past abuses is
strong we are aware, but that confidence in the present tribunal
is daily increasing, is evident from the increased business occu-
pying its attention; the matters adjudicated upon in open
Courtj of greater or less importance, average about one hun-
dred cases a month, and are constantly becoming more nu-
merous.
In conclusion, let us ask, what are the advantages which it
is supposed may possibly be derived from the contemplated
changes ? There are six Common Law Judges in the Province —
three in the Queen's Bench, and three in the Court of Common
Pleas. It is well known that the Court of Queen's Bench is
fully occupied ; it is said that the Court of Common Pleas is
not so — that may be an argument for abolishing it, but can
scarcely be an argument in favor of abolishing the Court of
Chancery. There are three Equity Judges, who are now pretty
fully employed, and who are likely to have much greater
demands on their time and exertions. It is proposed to get rid
of these three Judges and give their work to the Judges of the
Common Pleas, or of some other Law Courts. The reason of
this is said to be numerous abuses in the Court of Equity —
delay, expense, insufficient administration of its powers, &c.,
&c., &c. These abuses we have endeavored to show exist no
longer. But did they, it seems a strange way of remedying
them to transfer an equitable jurisdiction from those acquainted
with the practice and principles of equity, to others ignorant of
the details of the proceedings, and to whom the whole duties
must be entirely new. What guarantee have we that the evils
complained of will not exist stilH Are the Judges of the
Common Pleas more likely to dispense equity better, quicker or
18
clieapei- than those in uhom ihe power of doing so is now
vested ? Is it that equitable n.-licf may be brought to every
man's door 7 We have shown that under the present system,
which is not yet fully developed, it is already done. The
system of mingling law and equity in one Court is of doubtful
practicability ; it certainly cannot be a desideratum. In the
Un'ted States its advantages have not yet been proved ; in
England and Ireland it has been condemned and abandoned.
Is it then to save the salaries of the Judges 1 The expense
ought to be a trifling consideration when the due and efficient
administration of justice is in question. But it has not been
shown by any one that nine Judges are on the whole too many
for Canada— were they even so at this moment, the rapidly
increasing population and business would render it worth while
bearing the burden now, as they would soon be no longer too
many. But it seems to be thought that by merely enacting
that the Common Law Judges are to do the work of both
Courts, that the whole system can be changed in a moment ;
the idea is absurd. It would take a great length of time to get
the plan to work at all, if indeed it ever could be rendered
practicable. It may be very well in theory, but its supporters
would be sorely puzzled when they came to details. But do
those who exclaim against ^£3,250 as being paid to Equity
Judges, know the amount of interests involved in the cases on
which these Judges adjudicate, and which they would so heed-
lessly jeopardize by interfering with the present Court 1 Hun-
dreds of thousands of pounds in value are involved in the cases
which come before them during the year. In a single office in
fair practice we have been told that the suits defended or insti-
tuted, involve property or money to the amount of ^200,000.
But should we escape the paymentof the ^63,250, by abolishing
the Court "? Can the learned Judges who compose it, be
deprived of their office and its emoluments, without pensioning
them 1 Would such an act be right m just if it could be done 1
Shall we pay them their full salaries, and have their services, or
two-thirds of those salaries and have them idle 1 Or, admitting
^ 80 is now
lit to every
sent system,
done. The
of doubtful
jm. In the
proved ; in
abandoned,
he expense
ind efficient
las not been
)le too many
the rapidly
worth while
longer too
sly enacting
ork of both
1 a moment ;
if time to get
be rendered
ts supporters
ils. But do
I to Equity
the cases on
uld so heed-
)urt 1 Hun-
in the cases
igle office in
ided or insti-
)f ^£200,000.
>y abolishing
ipose it, be
t pensioning
uld be done 1
ir services, or
)r, admitting
19
that despite of justice and right, the learned members of the
Court can be deprived of their stipends and the amount saved
to the country, will any one endowed with reason, who has any
respect for the purity of the judicial tribunals, who has the least
experience in the courts of justice, be found to advocate the
abolition of a well constituted court for so paltry a consideration 1
Let judicious reform be exercised where it is needed ; but it is
easier to destroy than to create. Let those then beware who
either from ignorance, recklessness, or for party purposes,
would endeavor to foster an imaginary grievance that they
may gain popularity by its pretended removal, even at the
expense of interests which should be dear to every lover of
justice.