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The CHIEFJCSTICH, IHE Ho.NBLE. xMk. JUSTK.'i: liLlSS The HoNBLE. J. W. JOfl.NSTON ' The speaker or x„e HOl^SE OF itsj m, '/ y WILLIAM A. HENRY, Esc, Jl.Rp"'^'' of the Equity ,o the ( otm,,,,,, LnvT ■ "'"' " "=^'' '° ""^ '""""er fit to prepare a Bill for that purpose lo he subnmied to the Legislature." y J ^ ^jt-V. ^A Ut m ;. * -'^^. t^ iiii' iVnifa i^i:iTi:ii, (jci. Siu- Haukav, 31m Jamarv, lHr>2, .„• „,e ' t • I • " ="^ <..owlo.],o the receipt of your letter •" ""' -IM oi ,|„s ,„o,„l,. uilomnng me that " the Connnissionors ■'P!.-..ed to on,,nre vhe.her any and what unproverneM.sca ^ "KHlo u,.H,r present .systen, of Jurisprudence, would he much ,.ranl,cHl M 1 u-nuld favour then, wah ,ny views upon this impo ! .■-t subject and enCosiug a copy of the .p.ostions which .hey h d 'l.-c cd to he put to the several practitioners of the Courts oil Iw ;'"d I'.qiiity 111 this Province."' navuig submitted it to the Chancellor, and received His Ex- ;':t'':r,: ':'"""'"" r "''^' '^ ''• • •"" ^ive yon such observ;. H.ns as 1 a^e occurred to me. Having had but little tune to con- I - and arrange them, they are more protracted than I -o d ^ ^^1'- I.nper.eet. however, as they are, as they express mv sen- «up..,...a,,.ct.o.,.^ • ■) . e has been .lovo.ed, 1 shall be obliged by your j,!;,,,, , ,„ •' pla< e m t|,e appendix to your report. .0 omMu^M: "' V;' ''"' ^'"'''''' "'■'' g^''"^'"^' '^''^'•«^«'^'-- J-^^cept ' "Vatories. .My pnucipal object is, to endeavor to d snel ibe e., ..under winch our ..pi.ysystem, as actual;; ad^ 1''^ 1-een made „. suller much unmerited odium. •'• ;^ ->munv,nea,iun to Ilarl (Jrey. dated the l.),h April las, I -e^ as, I , ,,.,,,, ,^^,,,,^^ were lie , "'^' l""-"".s month of March, viz. : that "there of ";;"■";":'''' " "" ^^ '"■^^'>' ^'^ so justly complamed „^^. ,^^_. j,; :;;,;''- --- -t a smgle cause staiuliug before ,!„. l!rnN: ' '^''V'""^' '"''"'^ ""'^^ reforms spoken of in '""'^i' 1 ."l.aainit and IVss as desirable, were in operation m ■Ml ""• * ■ "-- - -It- —■*•-"- t. I.I It 1. tlll^ i' ru v:iH;«', and tliat >miiic ,,||liiin IkuI hirii sn l\.( ;i fC-iiMilri; •' pci'ioi 1 IllVlIf VDII In ;i niihl .(\a|lllli:ill(ill ul (lie until (.1 \\\v^,- slalc- iiii'iits, not (I iinisi Im: li.ii.l (1 r.iruu villi.'; by iissiiiiiini.' that evils. «'Xi.st, \vlii(.-li r aiiJ Miilors wliu Iiavc Miirncd wrniiL'. and rri|iiiiiir,' tlicni in s|i.rity llic cases in winch ii lias occiirivd. and thu caiiM's ut' iIkiI wkhi-. N'.mi- collca-iics Messrs. .luliiision. rniaiv|'erred that the • iiqiiiries I .siij^gest liad preceded this cuininiinicatinn : not that I .''lioiild have felt it hocoininsr, or necessary, to enter into controver.sy with ilioso who may addnco the particidurs: hut that the facts might be admitted, controverted, or (,x|)laiiied. These remarks do not refer to thu lonrteenth. but they are applicable to all those interrogatories which contemplate iinpi(^.'- nieiit in the Equity i)ractiee; for by them an? suggested as defects now existing, matters, some of which, under the system as actually administered, have been long since removed ; and alterations, wliieh, if beiielicial, rerpiire only to be stated to ine to be made. It has been, for example, remarked to inc. ihat it was a pity witnesses eoiild not be examined, viva voce, in the presence of the parties, yet they arc eontiimally so examined, and may always be so examined if the parties desire it without commissions and interrogatories, belore examiners in the country. Examining, and cross-examininir witnes.ses and their incidents ; passing, and enlarging publication and its conserpKMices, is pliraseolouy nsed alike in Mngland and .\ova Scolia, bnt it imports a very diliVrent meaning, here, aiid-^here. Vet, weie not this the case, it were not desirable to centralize our system more, by bringing afl the wit- tiosses to the ca[)ital. Again, it has been urged that we liavi; not set times, within which, as in the Snpreme '.'onrt, the suitors imisl proceed. Hut we have sncli set times. Then it is assumed, that the practice gives too long j)eriods for this purpose. I\>ssil)ly ; if so. an order can diminish their length. It li: 1 see suggested, that the Master's duty may be done by the Master of the Rolls. This BiH f j « 'J i m i ji . I ji-M- ' trnf r r -^ l*K«.fciM.I ,I.,H<.^ LKTTKK. w.-mM bring local business to the capital: vet ll,nt wbich c-au aclvaiitageoM.ly be done i„ il.e cuiu.iiv betuie Alusi..'. eMraoidi- liuiy, urexa.niiieis, or otheruMse, should be dune there. 1 \vus •ai.ch amused with the reply of a ee„ilen.e„ ,m ,\ew Wnk to mv qnestion, as to how they d,d Equity bn.u.es. without .Masters. Hesaid '-we dont do without tliem: we call theui (."...nmissioM- ers. rhere is httle analogy between the Chamber business ot a common law judse, and that done in tiie Master-s office. In cases where I have .seen that I could save a reference I have done- .m. riiat the Legislature approve of relormn.g the pra.'iice bv ..rders IS apparent, for „ue of its last acts was ,o reu.vest His J.xcelleiiry and myself with the same power, under which the improvcmenls in the pleadings and practice of the Court have been made. Legislative power then, in this respect, being possessed by Its judges, It vcoidd seem to be superogatory to lesort to special legislation tor that purpose. To do so. will a' .ir to imply that they are unable or unwilling to perform their duty. It will cer- tainiy uicur the risk of marring the work I am gradually perform- , >ng, and which only can be well performed step by step. In so lar as I have yet proceeded, I have been encouraged by commen- dations m both branches of the Legislature: acceptable to mo l»ecaiise I did not seek or exj.ect l.hem. Ii; however, it shall be your pleasure to recommend legislation, and that of the Assembly to legislate on the practice; yourself and your coadjutors may assure it, that I will enforce its euacl- meuts, to the best of my ability. rnlike Newloundland. and our East Indian pos..ossioii. law ai.J L.pnty have always been admunstered bv distinct tribunals . Im Irovuice, and a Chancellor and a (onrt ol Chancery ■n.erwoven with our judicial and pohncal uistitulious. To d,.'- I---U1. both. ,f the public good require it. IS a public duty : '•'^'■^'■M'nous enquiry should precede a measure ... important would seem to be a duty no less imperative >«ncl..u, en,pury,suowui progress. The country will await •h ,: Xl' ' 'T'"' "" ' ^-'"""-^'"». ^omprishi, its most .stmg, ished men, whose members have been liouored, not .nerely I'.V .he nomination o, the Executive Covernment. b, t by havi . • II ffqiiir^s no .Act of \s-.priilK. _. . \T ■:^ l^^a 3pa^^5 -'!i IM'-M- iiMi:„.s ic-..ni-.i „u I'nr. |.,.n-nal.s „i i|„. ,v,„rs..|;iauuvs ui ilio penpio as u-wni.v .,1 il -ii.,.. F,,,,,, s,„.|, a < nnunissmn nv.iv he -x|H.cird a iv;m„(. al.le. ^'areliitj-. Irani-Hi. aiKJ nimnio. honoiabN' t') yunri^elvos :;n'i llie Proviiicp : a rep.n't whir!, inav bo j)laccd .side by side ill o-ii- libraries with the productioiis of the Jurists ,.l England, and Aniorira. wlio hav^ ol' late years been cnsased m similar enquiries. ' ^ "' In every respect your Commission m.ist be especially accept- ftlile: to you men of all parties can eonfidentiv appeal, noif nnkm- them atVaid. You wiij be able to ascertain whether th., Court of Chancerv be. (as it has beoii sti-matized in influential newspapers) the '• Monstn' giievanee of the Colonv.-' and a "sink ot iniquity." Xot a petition to the Assembly (F speak of the last si.K yc, rs) lias been preferred, or ,i case of wrong or oppression urged acainst It there, or in those iiewpapers. How is this if it be iustly obno.xious to su.'h odious epithets .' One cannot take up r.n l-'iighsh tiewsp;iper without seeiuir some case of hardship ur-ed against the Court of Chancery in England, and the table of the lionse of Commons has for years been covered with petitions for Its reform.- Is our Assembly less accessible than Parliament, or :ire our newspapers less ready to pubJish than the English ? It is impossible to deal with declamation on such a subject as the pre.seiit. Undoubtedly time is required in the prosecution of many enquires which are the subject of equitable iuri.sdiction. Delay and expense are inevitable in any tribtmal, by which those enquiries are condurted. [low can it be oiherwi,.e .' In what other depart- ment 111 lito ;u-.> unporlant .•ill'urs transacted without delay and expense ? If th-. rrmuneraiioii to the ollicers and practitioners be i"o great, it i. tl,o f;ult of the As.rn.blv. bv whom the fee table was rocently rrv-,.! I shall pivsenlly compare the expenses of this Cniirf. w:!l) M'u-,e „r ihe Probate Courts not long ago reformed by tlip Lpni.;-,inre. Ijiii before I pass from this topic 1 will say a word as to the vpItum mad- i.i the House last .session, of its business, during the last.livr- ;, ears...-^Viihout intending an invidious com- parison. I must sav. Ihat^ accurate conchisions cannot be drawn as to tbecomparativn oxpeu.ve of the two Courts, imiil a similar return be ohtair,ed from the >^upreme Court, and it cmpaivd with the present costs of tbp Chanrcry proceedinas. am informed rhnt in a forerlosure at I'ictou. the costs taxed F"*orsiblv tliPiT mav hnvr XiCIl ■"Jmi'tlmi^r t.^t,. t"rrcl().sinf; in ( Ji lurci lijIU- lanoiM'v. lor i'il.i; V ill rliat ':;(■.(; '■♦T'^r'ed to ni... [,e ,.^1,,^,,^ '■iiciirnstancfs ( W 1)1 ■'">' auioiiiH. rii '"' 'i:iir thai ^iit at an rati ''>^""^^ ;'*it hasfj ■■iUlii. a;ij uiuier (•en f'lii-Wish I "'t-' ' <-'ai-L'iullv ox 'Hilly "'"lis aiid L-.\ aiJiiin' (he iiuil •■^nlo by aid •'ire now co •''e J-iqiiiliC's of .\Io Pi-aotice. i d I"'IIMV(- |(,1- [} '■'liuiucs n <' not iUlu ''»• m piDLr r(:.S> •^ \\'i'n tiic-iu ( "■•> i''iii/(j '"•I'lcted. lu t\ iio rcuiilal "• llK!|l). •■ and I "I I htiv ••^"lUl "1 ili( art! t i''ar III Ion If- case nl'Mcl s under uin, i " tn j)|, Ol) '■«i>^niptiou i,i ii,,-c,; M rtgagees were Ibredosed bv orta-aires . I /oj-ecl ().sni(...s '^''". in u-hicJ, the Mor one f)rocecdii iiac'i to il iiei „ ,. S»?"r, ,1,0 .vliole amo„,„ „, '"'■''''''-''''""' ^""1 •WO ,0 ^v,-. ,,,.„, • I' , « ri.portol ,„ ,„., „.i„ j„ f„ •;P°" ^ cliflercm principle ,hn,'7,"' «™"»"»"''" to ,hem "''"">•"';;•"- may be oallecl pie" J rf"''' "'S'-'"-' "P«»' I'y llic late ce„orai 2" ""'''. '">^- •• '"PPi'S and filin. ■^"«' 11,0 latter may p„„„, „,„,'"" '"■«" sci'ioiisljr a/reclecl =;'«1 importanee, «. 10,4 3 ,, i , "T'"'"'''"'""' "'""■»-• '« " '■'-■"■y ■«",,„,, take l,-„,„ , "! '^° '"'""ileration which .hi :;:• r -•':':w^n:;:-:'t:;- :-:^"',r^^^^^^ '■"'"•■ ^ '-.-■.■ r;;::i;,r.,: r'" ■BaailU I.-. 11 i.i: i m < •(.■MIM'I S,,ll(;i|ur< ;,;i,l AllnlUir.s. I,,IL.Ill \,v rMh In l,., 1 ,„, ill.' JIkIl'CS. Willi a.lvaiilaut; K. ilic pui.li,;. I ;,iu ii.ii iiiiav;are of tlic coinmeu- rmrs In whii-li il.is sirj-evstmn will pinhaMy rxpose it. and iiif : '""• "'' " '■'^ i" "ly "|''i':":i- loiiii.ird 111 jii!,iice aiii] sound policy. I l>(.'l it ti) he my duty in liiake i*. The rcdiiriioii of lawyers' iocs \\i of tho );oigliboiiviii2 union, and its State l,-".'i>hiiiiivs have a'-!p 1 upon this crronooas |inlicy. But hv it, III.' pnl.iic\ not i!,o p:-ufrvM..!i, has .,iillered : and tlio poorer cla.sses liavo .sulfcivd nin.st. l.u' poor men as well as rich have rights to assert. U hen in Xew York [ heard several of its most eminent Connsellors, and I do not hesitate to affirm that there are at our iiar, whom it were indelicate to name, gentlemen to whose advocacy I would as .soon commit the defence of my life or fortune, as to the most distinguished of them. Now their fees vary from fil'ty to five hundred dollars, lor conducting jury causes, for which our best men receive from three guineas to ten. It is obvious that this dilferent state of things arises from the more adequate remu- neration which the law of this country allots to professional men. It is a matter of ordinary occurrence in tlie United States for a poor man to agree to give an Attorney one half of what may be recov- ered to induce liim to imdertake a suit. That is not so in Nova Scotia ; such a bargain would be held illegal, and the practitioner, who made it, censured by tiie Court. Of the delay ascribed to the Court, I repeat that there must be something very particular in a contested suit, which, if the Solici- tors do their duty, can be protracted beyond a twelvemonth. Then, the prolixity of its proceedings, is still dwelt upon as if a remedy had not been applied to it, or as if there were in the system some ineradicable vice, whicli renders prolixity irreme- diable. No doubt the practice'.' of the Court of Chancery i.s susceptible of improvement. Uul it is not chargeable with the accumulated sins which arc a.scribed to it. A Solicitor ignorantlv multiplies proceedings, which the fimctice not only does not require, but whicli when it comes to the judge's knowledge he condemns: another does not push his oj)ponent onward : straifrhtway a third 4 r/,.,v,.,i llv ■;■'■""","[, '-"'Act „i tho Provinrial Let-islalurr, wl„cl. passed in lb33, or. . a.l ro adhere In the Lnglish practice, until altered t,v orders made bv its Judges. li ■ '*■ f ^W*;(i»**f fc?! ->-. :?r-.'r?¥*?!^?s»«^r^^-^ »-*Jfc-W^^J LI/lTKi;. y poiiilb l„ tliis prulixiiy and doiiiy, a^ Uilieiviil in ih,,- sysleiii it.sdl. Jr you adopt my suagcsiion as to the mode of malving your riKiuii-ies, the vcsiilts will do miicli to disaLuse ihc public, mi' ihis head. 1 desired one uf , ic most exleusive practitioners in this City to rurnish me with a .stai.anent, taken from Ins costs book in succession, of the taxed c.sts of half a dozen contested suits, and also a memorandum of the expenses attendant upun two causes appealed from the C(>iirts of l^rohaie of Aimapohs and Colchester. Here is the substance of the statement, which I give you with tfie explanatory remarks of the writer : Alrnon vs. Hundley— Contosled suit— £7(5 18s. Illd. Bill filed to foreclose second Mortgage and to redeem first Mortgage, and to settle accounts be- tween Mortgagor and Mortgagee— Defence Usury — Decree for Complt. after argument of cause. Almon vs. Wilkins, Exr. of Mor(i7?ier—S.67 Os. 2d. Bill filed to settle account between Mortgagor and Mortgagee, and to confirm sale of lan.is, and to settle the accounts of Estate— Complt. claimed full payment of Mortgage from assets of testator — Decreed after argument. No costs taxed for Deft. Kinnearetalvs. WiUinmso/i, Exrs. of Broivn— £152 5s. lOd. Bill filed by guardians of Minors to take the accounts and settle maintenance of Minors— SuitconTested— Accounts volumi- nous taken under decree. Taxed costs of defence and Counsel fee —£132 5s. lOd. Debarrcs vs. Niks-Hm Os. Od.-Bill filed for specific per- formance of agreement— Suit contested- Witnesses examined— Bill dismissed after hearing. Costs not taxed for Deft. Cnmmm r.r Hour. Admr. .5r.-(\,ntested suit. Suit filed for account and payment of certain notes from ^ '''f?^wws«w« MBBI .■:^ i-KTTER. '-tutu Of lntestate-.s-evera1 wu,.esse. ex- ammed-IiHJ dismissed after argument. Costs not taxed for Uomplt. CoMs on Appeal £28 2s. 4d. i„ all £78 ^^^- -d. Appeal and decree of Court Hendricks v. AT "^^""'^'^ ^^ Chancellor. fiend,u:ks^s. Messen^^er £Si 19s. Ud.-Con.ested suit. RiU hied to establish a prior Will chargmg fraud and suppression of VV-Jll-Witnesses exammed-Bill dismissed. ^" '"e matter of McEu!!m:rU'^L''",'^^^^ into Court of Chancery-re Lstf and ." ' '"""" '' ^''"'' Court at Truro exceeded £300 ^'"''' "^ '^' ''''''''' The costs and expenses in the Probate Court of Exr were £lfi'. .e account tn the P^balTl^tt ^ ^^ '^ST t^"'"^ n^attttSerirretr^'""^^ Chancery. If t'eBiniil, «??''" ^'''^ '" ^^e Court of theon.ytribunalUpetelttodoso""^'" ^^"'^ ^'^ ^^^^^^' - TlL^mld^Tn'wnci; Ar^s"" 'Z ^''''''^'^ ^-^^--^ peculiar to it, and ;:ob\ryt:;:,T,^^^^ ''^•%T^^^' ^^ eery Act of 1833 Tn u, , ^^ ^^^ ^^<='- ''^ ^he Chan- our^wn the appe! i;T-"/7'"'^ ^^^'""^ Constitution is like iudicial bomm tt r h a f " '" ''" ^'""^^'''^'- ^« ''- appeals in C "a y are 0^". 7"?f ' "'^^^"'^^ ''''' ^ Supreme Court, it Ire bett I- to t h "'^'v'^ ''° '''''^'' '' "'« but the su?.cstion llTnrT "" "" '^''''' ^PP^^' '° 'hem; ^"..cst.on evinces ent.re unacquaintance witit the subject ''^f*^*r?'"*'Tr»tf''Wf:.'v:.iw'/ 1 iiilMfftfririy L I II LW I M I K H IM. • I.KTTER. 11 First of all is llio delay (of itsolfan insuperable objection) arising I'rorn the infrequent nieetintrs of tliat Court, whereas the Chan- cellor's attendance can be always procured at an early day. F'or it is not (as is the case at law) by one decree a case is decided; in Equity, there are froquentiy several consecutive decrees, all of which, the parties have, and ought to have, an opportunity of questioning. That our mode of disposing of appeals is open to theoretical objections, I admit; yet it preserves the analogy to English appeals, which is no slight consideration, since from the Chancellor an appeal lies to the Judicial Committee. The abortive efforts which have been made in the United States to constitute Courts of Appeal, evince the intrinsic difliculties ot the subject. In England the business of the Judicial Committee does not induce the attendance of the bar. at the ordinary remuneration. There arc several advantages in our mode of dealing with appeals. First, it is much less expensive than a direct appeal to the Supreme Court would be. I3y the construction which 1 have given to the rule regardins]; the deposit of £20, it is in effect, but a security (cf the costs of the appeal. Second, I have authorized instead of the former voluminous petition, a brief petition which does not occupy a folio page. Third, as the parties must bring all their points before the Master of th*^' Rolls, in the first instance, litigious suitors are precluded from lying by and harrassing their opponents, while the points, as to which the appellant conceives the Master of the Rolls to be in error, are narrowed down to one or two. Then, while the appeal is pending, other parts of the suit may be going on at the Rolls, a circumstance of much weight in consider- ing this part of the subject, but which does not readily occur to a person who is only conversant with proceedings at law. And it is in my opinion, this error which misleads many who think that the subjects of equity jurisdiction may be disposed of by a jury. How much of theory there is in this objection, and how little of inconvenience can have been experienced, are apparent from the fact that, during the last eighteen years, there have been but sevctt appeals; on an average, about one every two years and a half There have been three only in my time. And the same observa- tion emphatically applies to the objections usually made, as to issues of fact, and questions of law, which may be sent from Chancery lo the Supreme Court. On several occasions I have offered issues of fact to the parties ; in every instance they liave been refused, and T have been asked ■' '1 T £%g»c jBcy- - ^ f u ^ ^^ 'f^m^"*' ^ '^ - "^■■ l y^uM.i.iiiuB jWi i;! I: i.i;tii:i; to doc.l. myscir. l},u ,|,f,,. I,,, „.,„. „,^„ , ,.,,„ i,„,_.,^ ,^^.^,^_ .^^^ i.vsiiool la,..l su.a to tl.e Sup,,.,,,,. Court: mul l„.f ,„„. cas. for .is npiuiou ou a quest,,,!, ..f lau". ati-l ,!nr I .s.nt nivs-lf iluM,ihr, • lay. Th-re have l.oou tlitML seven appeals ni eislnuou vc-irs no issues oliact, and but oue legal opinion rocj-inv,!, .lunii'^ a time whereof tiio memory of uiau runneth not lo tlie contrary " Itisaconlroveivsybelu-eenlhoory and facts; vou nnist deci.l.- It — "Non nostrum inlor v„s unlas conipniiorc liles." Theoretical objections have little weight with inc. Thov are urged now-a-days aganist ahuost every thing that has n-<>rkr,l ur /ui E.ighsh Inslittiiions, incln.ling the Royal head of them all. Keposu.g implicit confidence in the assurance, that ,f it be determined to administer law and ].:qnity in one tribunal, mv rights u-.ll be respected, I have no hesitation in making a few remarks, upon that, the most important subject of your delibe- rations. You will have seen that the result, so far. of the recent agitation on the Chancery Court, in Engla.id, has not Leen to abolish, but to add two new judges to it ; you are also probably aware that in 1841 the Imperial Parliament transferred the Equity jurisdiction of the English Court of Exchequer to the Court of Chancery, and that m 1S49, the Equity jurisdiction of the Irish Exchequer was in hke manner, transferred to the Irish Court of Chancery If you adopt the principle of the bill, which passed the last House of Assembly on this subject, you will not follow, but depart from the example set you by the British Government and Parlia- ment. That there are British possessions in which law and Equity are conjoined in one tribunal, the Supreme Court, is well known. I have already alluded to them; and probably, nVA ^rrmt care, an Act of the Legislature mietit be framed to combine them here. For it is observable that the bill of the last Assembly, did not propose to abolish Equity jurisdiction, but to vest it in the Supreme Court ; to that intent to make me a judge of the latter, and to sim- plify the Equity .proceeding.^.. -I presume none will now contend that it would have effected the latter, and, judsing from the pro- ceedings of the Probate Courts, and the costs of diem, it must now be apparent also, that it would have enormouslv increased the costs of litigation. Appeals, you will perceive, from the Probate (^urts are infrequent, but, as the I2th and 13th sections of .hat bill are i.r.TTDi;. v.i trnr,; pas- pro ! I eqr. sliai'i i ni»l"'iiKs iiiusi hiivo lHuiiio.usa(3r;.My iiiiiliipli-l^ liad it 1 jiiio law. 'I'hcsc soctioiis nrc ns follo-.v :■— •. !. C.urt l»H'..m wlioiii llie i^sim is uud v.y.'V ll.oroiipm. ,V,.,.,^ siicii liiiul orothor (lecic^ ns s!:n;l ni'pcar .|ust ami ,'",..' or in ca,-ps ol" diliicuty may amci tlut the lioarmgs ■ .,',. yilaee helorc llic L'ourt ai llalil'ax. ' Haliiix. oil such tenas, and in such way, as shall be prescribed in lhi''c..dcoi' practice." Tins liill is ill great part copied from an Act ot t.ic Legislature oft',1' Suite of Ohio, which never had a separate Kqiiity Court, and whose judges are septenuially elected. 1 know not how the Ohio system works, but I do know, that in the Scottish, in whicli the Lords of Session have combined lesal and Equity powers, the nuK'hinory is cumbrous, expensive, and almost interminable. A Z'md deal has recently been said of the New York code, by which die whole jurisprudence of that State has been revolution- ized, .lust before his death, the' late Chancellor Kent addressed nie a letter, in which lie expressed himself as follows :— "The late constitutional revision in this State, abolishing the Coiirl of Equity, and making all the judaes elective, 1 liold in utter detestation, as tending to a disgrace, if not prostration ot our jurisprudt-uce." And an eminent lawyer in Boston recently tola me, that '-so great was his apprehension of its results, that he Avould neither own property in New York, nor reside there. It has been said that by it the proceedings have been greatly shortened. Judging from the pleadings in Ray vs. Van Hook, which 1 have been permitted to see, I assert that, under our general orders, onr pleadings may be more brief than those of New York; and if one general interrogatory be substituted for the interrogatories now in use, as in the case of foreclosure bills, and which 1 have for some time had under consideration, they will be still shorter. I repeat that they may be more brief now, for m New York they have a special replication (in this case of Ray vs. Van Hook, extending over 25 folios) which we have not. So much for prolixity, and as to delay, if I was correctly informed when there, where we count weeks, they count months, in bringing causes to an end. On the actual expense to suitors in that country, and its injurious eflects upon the poorer classes, 1 have already made a few observations. I have referred to this code, somewhat at large, because it huz been lauded and spoken of as worthy of adopt ion by us. It had .'i m mmmmm m f'li •PWnwp. 14 I.ETTKR, ».- • not been wholly introduced into that State, ere a soiitleman named Pieldjm.meyedtoKngland, and proclaimed everywhere that it "had vorked beautifully in his State/' and the Commissioners who prepared it, bear tins handsome testimony to their own labors. Although the law of rights is a vast scioire, the acrumulation of numerous countries and ages which it requires study and patience to comprehend, yet it is believed that the practice of the Courts IS here set torth in such a manner, ihal no person need have occasion to witness a legal proceeding, read a pleading, or render a verdict, the meaning of which he docs not comprehend:' Happy Americans! every man his own lawyer; yet the legal corps of iNew lork IS more numerous than ever; and the " lay gents" there, perversely refrain from reasoning and pleading in the Courts, on^their own account, the code notwithstanding. The Americans are somewhat imaginative when they speak of their institutions, and almost every change is an instituJon, nntil it comes in its turn under the law of mutation, which is not, to be sure, very long. Those who praise the New York code, which had beeu repre- sented to the English people, as perfect, admit that it requires, further legislation:' and ^^ various amendments:' Of course it does; the judges are 'only elected quinquennially : they should be annually chosen. Tlie popular hare is not yet run down. "The Judicial, the most intractable power in the State, is unbearable by despotism, individual, or collective. Napoleon is about to remodel the French Courts, so as to rid himself of the inconvenient control of judges he cannot trample on or set aside.'' Old England, with whose institutions our democratic neighbours delight to compare their own. has still something in the legal way to boast of. The judges of Westminster Hall are not influenced by public sentiment,* nor is mob law recognised as the expedient exponent of it in the British dominions. We shall see if the lust of gold introduces Judge Lynch into Australia. As tiiere was no provision Ja. the bill of the House of Assembly for a pension to the Registrar, or his transfer to the Supreme Court, permit me to commend his claims to one or the other, in the event of the abolition of the Court of Chancery. He has held the office twenty years; he accepted it when he had every reason to believe it to be a permanent one, and it is his sole dependence. « ^ I tv I p' p I! 3 ^ETTER. 13 Hi. co.uluct has been such as to entitle u lo „,y entire apprubuiion «nd 1 an. qu.te sure. .1 yon will g.ve to his clanns the we,, t oi' your re,:u,nn.endation the Legislature will regard then, favo'ablv , I nr.ung Iron, the Court of Chancery to more general eonsidera - .ons I woMld submit to you the policy of puymg the officers of the Court, by salaries, mstead of by fees as at present. I allude princpally to the Prothonotariesand Chancery Registrar, although I also t unk that, to the extent of a moiety of their incomes the pnnc.ple us applicable toSherids. i really can see no reason Uy ^is should not be done as regards the officers I have named us wel las m respect to the superior Judges; but this is a topic' on wh.ch 1 w.ll not enlarge, but recommend it as one well worthy o the consideration of the Legislature. ^ I would also suggest the justice of paying jurors (besides mode- me trav.. hng ees where the/ come from any distance) at least a dollar a day durmg their attendance on the Court. I ealv c^not understand, and never could, the objections by which Ss pro^sal has been often met; nor why the poorer cLse f^Lm which the jurors are usually selected, should be compeilei (fr^ quently at the most inclement season of the year) to leave the!r homes, travel a great distance, and maintam thUse les wh e they are performing a public duty. ' ^ 8it[or'lon/?J"'"'' r' ^"^'^^'^'^ recommendation of a propo- fflUon, long a project of mine, and now the law of Eneland I at?. 'rVe;:^: -r^ /, -^^^^^^-^ -- ^'- LeglslatuL slelTytr the law of tin? oltX ^T ''T- ^'' '^'' '' ^^'" b^'^^™^ Th.i IS a n sure wr '. '"^ ,?' '^'''^^ ''°' ^ ^^""«^ ^°"bt. now. thaturcL:'^^^^^^^ -d surely can be r.o d » ' ^ f T' ^"' ''' ^''' '^' ^"^'"P'^ ^^ere Icontosstoa.,t> "^''''^^^ dence. Such chants .°h ""t"^''"^' innovations in jurispru- legalinMuui.o,; e'fblrr " "' ^f"'' ^'"^'"^ Political/nor Free comnu„uties 1 ^^^antageously abrogated by a coup d'eiat. been born and bred''°Tr"'''''^''^ '° '*''''' ""''^'" ''''"^'' ''^^y have trialbyjury- i„ civil' '''' ^'"'^ '"'^ ^^^ reconciled to the "'''"^^ i the English esch wfugie warrants, and *Se« ariit:'. m til'; Law jTg S'-'-iiiio, May isoi.pp 131. l,t''.'TYl**fl^/W^ ^ hi '''T"'^mf^ ! i m?t^iw ' '" " .g* ^ RMMW fs^sggs^^ 15 10 1.1. 11 bit. lolttMs oi" iKiriiiii!,' and cniuiou ; and ilio .Ainoricaiis are liorriliud by llio use of iho Uiieoii's name in onr Cotuis ol" Justice. I do hope, llierefi)re, tlial iliat, wliirli rnniour ascnbes to yon, is nniruL', namely, that yon aio about to rL-commcnd the abolition of a// forms uiid niodt's of procedure. I liave lonL' been under the conviction, that beliind them, and protected by them, repose in safety the rights of property, and the security ol persona! hberty. I would Mniphly tiiose modes, abohsh uselcs.s forms, reduce needless pioh.\ity, and diniinisli inordinate expense, "^'et ninst I ever look with apprehension upon the removal of ancient land- marks. I would widen and streiiL'then, and repair, our old ways, hut never, except upon proved necessity, abandon them. I have the honor to be, fciir, with great respect, Your most obedient, Humble Servant, ALf]X. STEWART, Master of the Rolls, Judsre of the. Court of Chanan/ oj Xova Scotift, and JiuJge of the Vice MmiraU'u Court at Halifax. ^ The Honorable The Chief Justice. P-S.— I have directed the Registrar to enter this communication in the Minutes' Book and a few copies to be printed for convenient reference. PuBLisHEiis' Note.— We regret that the name of the Honble. Joseph Howe, Provincial Secretary, one of the Commissioners, was inadvertently omitted in the above list. .\-*< r-,.