HISTORY OF THE COURT OF CHANCERY IN
NOVA SCOTIA.

(Continued.)

Let us next turn our attention to the practice and procedure of the Court, and observe how and in what manner its business was carried on. Some particulars of the earliest cases coming before the Court for adjudication have already been given by way of illustration. These, however, by no means cover the whole field of Chancery litigation. We find that defendants were brought into Court by the old process of writs of subpoena regularly issued, tested in the name of the Chancellor, sealed with his private seal, signed by the Registrar, and served by the Provost Marshal, and afterwards by the Sergeant-at-Arms, who was sheriff of the county of Halifax. Bills of complaint, answers, pleadings, and demurrers were duly filed. Motions, references to Masters, interrogatories administered and taken before examiners, orders and decrees made and duly enrolled. Every known subject of equitable jurisdiction, from time to time, seems to have come before the Chancellor for hearing and decision. Briefly to enumerate some of them extracted from the very complete index kept by the Registrar, I find bills to set aside agreements for injunctions for injunctions against proceedings at law-for account and relief-for foreclosure for specific performance for account and dissolution of partnership-for discovery-for redemption-for con-tribution among sureties-for dower-for partition-for writs of ne exeat regno for scire facias to repeal letters patentfor administration of trusts and estates for writs of de lunatico inquirendo-for writs of certiorari-and lastly one application for a writ of audita querela, which, on the advice of the Chief Justice, was not granted. The above list of subjects shows that the scope of the business must have been quite extensive, and the subjects such as to demand considerable knowledge of equity proceedings and principles. I have not pretended to investigate the correctness of the Chancellor's decrees, nor would it serve any useful purpose now to do so. Bills for foreclosure, as we should expect, largely

predominate. Many of the modes of procedure then in use have been swept away by the spirit of modern reform. It is only interesting to us now as showing a Court of equity then in the Province adjudicating and proceeding in all matters requiring equitable relief.

I now come to the important inquiry as to the practice and procedure which governed our old Chancery Court. Our early Governors being laymen, it occurred to me that their methods of procedure would be of the simplest character, untrammelled with the fixed equity rules and practice of the mother country. This, however, was not the case. Fortunately, we have in one of the Chancery books of record most complete information on this point. The practice, generally speaking, was in conformity with that in vogue in all equity courts at that period. But the particular code of procedure and general rules contained in the book above referred to lead to the conclusion that they were taken from and founded upon the procedure then in force in the Irish Court of Chancery. It bears internal evidence of this from its frequent references to the city of Dublin in fixing the times for service of writs and notices. In corroboration of this is the fact that the method of foreclosure and sale in use in Ireland, which we retain to the present day, was adopted.

These rules and orders are all to be found in Book A., Chancery Rules of Practice, in manuscript, written out in a clear, legible style, with the following heading:

"The procedure of the Rules and Practice of the High Court of Chancery as they arise upon the several pleadings and proceedings in causes according to this order."

Later on in the same book is a second set of Rules, headed "A Collection of Rules and Orders in Chancery," also in manuscript, made, probably, at a later date, and a revision of the former. In this set are to be found, in explanation and support of the various rules, citations from the decisions of the Irish Chancellors, all pointing to the source from which they were evidently taken.

No doubt these rules must have been prepared and adopted at a very early date in the history of the Court. No change appears to have been made in them until 26th December,

VOL. XX. C. L.T.

7

1833, when a new or added set of rules was made. This addition was made in the last year Mr. Robie held the office of the Master of the Rolls, and it would seem that just before complaints had been made and legislation enacted to compel improvements in Chancery procedure.

Mr. Beamish Murdoch, who published his Epitome of the Laws of Nova Scotia in 1833, thus speaks of the Court of Chancery as regarded at that date: "Any one who will deliberately read through the long, unmeaning, but expensive forms of bills and answers in Chancery, and the absurd and unnecesary processes of contempt, as they are called, must be blinded by a reverence for antiquity, if he does not think them unreasonable. Those who are (as clients) made acquainted with the dilatory and unsatisfactory progress of any business which goes into Chancery, will feel convinced that there is something wrong in a system productive of such results. I have touched upon changes of an extensive nature, because I have reason to think that some alterations of importance are wished for by gentlemen whose long professional experience and high station in the Courts, and at the bar of this Province, render them the most competent judges of the extent of the evils arising from the present system. The Court of Chancery in England has become a national grievance from its expense and delays, and some of the colonies and many of the United States have no Court of Chancery, being disposed rather to submit to many of the strict rules of the common law in ordinary cases, and in important questions to resort to legislative Acts."

This extract probably reflects correctly the opinion of the profession and public at large at the time it was written, respecting the Court of Chancery in this Province. As already noticed, it was just then that the Legislature took the matter in hand, and passed a statute requiring and authorizing the making of new rules for expediting and cheapening procedure in the Court.

The new rules bear the following heading:

"COURT OF CHANCERY,-20 Dec. 1833.

"His Honour the Chancellor, by and with the advice of the Master of the Rolls, doth hereby order and direct in man

ner following, that is to say." Then come twenty-two new rules not meriting any particular notice here. An appeal is provided for from the Master of the Rolls to the Chancellor, and, as we already know, where the amount in litigation exceeded £300, there was a further appeal to the Judicial Committee of the Privy Council.

I do not find that any new or additional rules were made during the period the office of Master of the Rolls was held either by Mr. Fairbanks or Mr. Archibald. But on the 26th August, 1846, shortly after Mr. Stewart's appointment, a number of new rules were made, and some of the previous orders were rescinded. Mr. Stewart, during his incumbency of office, continued from year to year to promulgate new rules, doing away with many of the old and cumbersome ones, and generally improving the mode of procedure. It will be sufficient to give the date of their enactment to shew how assiduously the last Master of the Rolls was working to reform the procedure of the Court of Chancery, and to clear away many objectionable features which had grown up in the course of years. The succeeding new rules and orders were made in rapid succession as follows: 1 Sept., 1846; 31 Dec., 1847; 17 Jan., 1848; 27 Jany., 1848; 15 May, 1848; 20 Nov., 1848; 4 Jan., 1849; 13 Dec., 1849; 4 June, 1849; 29 Jany., 1850; 31 Jany., 1850; 1 March, 1850; 2 March, 1850; 7 Jan., 1851; 25 Feb., 1851; 13 March, 1852; 5 May, 1852; 4 May, 1852; and 14 Dec., 1852.

It would, of course, be out of place in a sketch of this kind to discuss or comment on the great changes effected in Chancery methods by these rules, but by any one sufficiently interested critically to make an examination, it will be found that many of the reforms in practice subsequently adopted in our present Judicature Act were brought into force.

That the Court of Chancery did a large and increasing share of the judicial business of the Province is evident from the number of cases entered. From the records it appears that up to the year 1799 there were heard and determined 133 causes and matters, and altogether from the year 1751 until the year 1856, when the Court was abolished, 1,904, which is sufficient proof that in its latter years it was kept busily employed.

Among the many professional men who practised before the Court are the names of those familiar to us and distinguished in our political and judicial annals. Gibbons, at one time Solicitor-General, and later Attorney-General, for the Province; Monk, who subsequently became a Judge of our Supreme Court; Blowers, at one time Chief Justice; Richard John Uniacke, once Attorney-General; Foster Hutchinson, one of our Supreme Court Judges; Robie, who became first Master of the Rolls; Young, who became Chief Justice; Johnston, later an Equity Judge; and John W. Ritchie, his very able successor. There were many others, whose names time alone prevents me from mentioning. The well-known reputation of these lawyers is a sufficient guarantee that, especially in later times, the matters litigated in the Court of Chancery must have been tried with learning and accurate knowledge of equity jurisprudence. It is not my intention to follow and point out in detail the proceedings of the Court of Chancery during the period the Lieutenant-Governor was Chancellor and sole Judge of that Court-not that the records do not afford abundant material both interesting and instructive, but, properly to tell the history of the Court from the year 1825 until it ceased to be in 1856, demands the remaining portion of my paper.

The.business of the Court of Chancery had gradually increased, and the Governor had for some years been striving to have a regular Equity Judge appointed. In 1818 Lord Dalhousie, then Governor, had actually commissioned Chief Justice Blowers as Master of the Rolls, but on reference to the Imperial Government it was disapproved of, and the commission cancelled. No reason is assigned for this, and 1 only assume that the Home Government so refused because the two positions were incompatible.

On Tuesday the 14th February, 1826, the Lieutenant-Governor by message informed the Assembly that, having experienced considerable difficulty in discharging his duties as Chancellor for want of a competent legal assistant, unconnected with any of the common law Courts of the Province, he had deemed it his duty to represent to his Majesty the necessity of appointing a Master of the Rolls, and had at the same time recommended Mr. Robie for the appointment.