The plaintiff has not sustained any substantial pecuniary damages, but a legal injury will be done if the collection, without his consent is interfered with, and he is entitled at least to nominal damages, say $5. The judgment will be with costs, payable by the defendant to the plaintiff. The counterclaim will be dismissed with costs. If any difficulty is found as to form of judgment I may be spoken to on settling the minutes.

Thirty days' stay.

THE ADVISABILITY OF ESTABLISHING A BANKRUPTCY COURT IN CANADA.

In the development of Canadian commerce transcontinental systems of railway transportation have been found necessary. Similarly under the operation of the banking laws, large banks have been created with their head offices in the monetary centres, and branches spread over the entire Dominion. For the administration of the affairs of insolvent trading corporations, including banks and insurance companies, a Winding Up Act, national in its scope and effect, has been in force for many years. For the administration of maritime laws and the laws relating to patents, trade-marks and copyrights jurisdiction has been conferred upon the Exchequer Court, which is likewise a transcontinental insti

tution.

I have mentioned these transcontinental institutions at

the outset for the purpose of suggesting that Canada is now, or is fast becoming a nation, and that the commercial activities of its subjects should not in any way be limited by provincial boundaries. If all the laws respecting commercial matters in Canada were made uniform it would scarcely be denied that the various Legislatures were doing good service to the commercial community. If it be true that uniform commercial laws would be in the interest of Canadian commerce, then it is also true that those laws which relate to insolvency should be uniform throughout the Dominion. Indeed

tion, for under sec. 91, of the British North America Act, exclusive jurisdiction is given to the Dominion Parliament to make laws respecting bankruptcy and insolvency.

It may be well to say a word as to the power of the Dominion Parliament to erect a Bankruptcy Court. Under sec. 101, of the British North America Act, the Parliament of Canada is given power to provide for the establishment of additional Courts for the better administration of the laws of Canada. It has been well settled that under the jurisdiction to enact laws relating to bankruptcy and insolvency, the Dominion Parliament has the power to interfere, not only with property and civil rights (which are exclusively within provincial jurisdiction), but also with procedure within the provinces (a subject also exclusively provincial), so far as a general law relating to bankruptcy and insolvency may affect those particular subjects. It is, therefore clear that the Parliament of Canada has the power to constitute a Court of Bankruptcy having jurisdiction over the entire Dominion.

I have been asked to discuss within the limits of a short paper, the advisability of establishing such a Bankruptcy Court.

All countries have, and in all ages, have had the problem. of insolvency ever before them, and they have from time to time endeavoured to apply two principles for its solution. One principle is that upon insolvency all the property of a debtor not exempt from execution belongs to the creditors and should be distributed ratably among them. The other principle, which is correlative to the first is that if the debtor surrenders all his property-if he makes a complete cessio bonorum-and has been honest in his dealings, and is not incompetent, he should be given a discharge from all his existing liabilities. These two principles constitute the essential elements of bankruptcy legislation.

The first principle has been adopted by the various provincial Legislatures, and their legislation upon the subject. has been held to be within their constitutional powers.

The second principle that of compulsory discharge-is not within the power of the provinces to adopt. The Attorney-General of Ontario v. The Attorney-General for the Dominion of Canada, 1894, A. C. 189. Certain approximations to this second principle the provinces have, however, adopted. They have adopted the principle that an honest, but unfortunate debtor is not to be kept in prison because of his inability to pay his debts. Some of the provinces have also by the passing of exemption laws and Statutes of Limitation, endeavoured to prevent a debtor from being forever

weighted down with an impossible load of debt. The relief granted by these last-mentioned laws has not, however, been conditional upon the honesty of the debtor. So far as enforeing the principles of commercial morality is concerned these laws are necessarily indiscriminate in their operation. They have equal application to the just and to the unjust; to the rash speculator and to the unfortunate tradesman; to the man who has become insolvent because of the failure of his debtors or perhaps through financial panic and depression, and to the spendthrift and gambler who has wasted his substance in riotous living; to the confidence man to whom a straight path. is impossible, and to his unfortunate dupes.

HISTORY OF BANKRUPTCY LAWS.

The principle embodied in the want of bankruptcy legis lation in Canada is, historically considered, that of slavery In the most primitive stage of society, indeed, the remedy, is there was any, was probably that of private vengeance. In the next stage we have the condition of things which may be described as private vengeance regulated by the State-the manus injectio of the Romans, whereby the creditor was permitted privately to imprison the debtor, and even to kill him. In the next stage we have public imprisonment of the debtor. The debtor was restrained of his liberty, that is, he was restrained as to locality and also as to his liberty to deal with his fellowmen. Later still, in the next stage, the restraint as to locality was removed, but the restraint as to the

debtor's dealings with others was, in effect, retained. Imprisonment for debt is abolished, but, no discharge being granted, the disability as to dealing with others persists. In the last and final stage of development personal restraint entirely disappears, and the honest, but unfortunate debtor is not only not imprisoned, but is left free to engage, unhindered, in the activities for which he may have any special skill and aptitude to the benefit of himself, his family, and of the

State.

A glance at the pages of history is sufficient to verify the evolutionary process here briefly sketched. In all primitive communities of which we have historical record, the rule was that a man must pay his debts in full, and if he could not pay with his property, he should answer with the liberty, not only of himself, but of his family. The Old Testament contains the story of a woman, who sought the help of Elisha,

saying, "thy servant my husband is dead and the creditor is come to take unto him my two children to be bondmen." 2 Kings 4, 1.

Sir Henry Maine said: "Nothing strikes the scholar and jurist more than the severity of ancient systems of law towards the debtor and the extravagant power lodged in the creditor." It brought many early States to the brink of ruin. In Athens a revolution was only averted by the abolition of enslavement for debt. In Rome in the ancient law of the twelve tables every execution was personal and resulted in the bondage of the debtor, and a right to the creditor to sell him into slavery or even to kill him. If several creditors had claims upon one and the same debtor the law allowed them to cut the debtor into pieces and divide his body between them. The creditor's right to sell his debtor was abolished in 313 B.C., nevertheless, imprisonment continued to be the principal method of execution. When the person of the debtor passed into the power of the creditor, the same fate befell his whole estate. It was not until the time of Julius Cæsar that a debtor became entitled to immunity from imprisonment on formally giving up everything to his creditors, cessio bonorum. This cessio bonorum marks the commencement of one of the true principles of bankruptcy.

The earliest English statute on the subject of bankruptcy was passed in 1542. Then, as now, it was found necessary to enact laws for protection against fraudulent traders. The next Act was passed in 1570, and applied only to traders, but provided penalties for the non-disclosure of assets. Neither of these Acts granted any relief to the debtor in the way of discharge of liability, and although the law expressed in those Acts, was modified by new statutes from time to time, it was not until 1706 that the principle of granting a discharge to the debtor was introduced. The Act of 1706 provided that the debtor might with the consent of a specified majority of his creditors obtain from the commissioners who had the conduct of the bankruptcy proceedings a certificate which when confirmed by the Lord Chancellor discharged his person and whatever property he might subsequently acquire from all debts which he owed at the time of his bankruptcy. Until 1831 the jurisdiction over bankrupt estates was exercised either directly by the Lord Chancellor or by Commissioners appointed by him. In that year a Bankruptcy Court was established in England, and continued until the juris

diction was in 1883 transferred to the High Court and certain County Courts.

In Scotland where a most simple and practical system of bankruptcy is now in operation, all insolvents were at one time called dyvours, and were regarded as fraudulent debtors. In the beginning of the seventeenth century, the unfortunate dyyour was clad in party colored garment, one-half yellow and the other brown, and in this attire was exposed at intervals upon the public pillory. Although this practice long ago fell into disuse, it was not abolished by law until 1836.

When the laws of England were introduced into Upper Canada in 1792, the laws respecting bankrupts were excepted, the statute, 32 George III., ch. 1, sec. 6, enacting: "Provided always and be it enacted by the authority aforesaid, that nothing in this Act contained shall introduce any of the laws of England respecting bankrupts." After the union of Upper and Lower Canada, and in 1843, a Bankruptcy Act was enacted which granted a discharge to the debtor from all debts due by him at the date of the commission and from all claims provable under the commission. This Act by its terms to continue in force for only two years, but by subsequent enactments passed annually it was continued in force until 1849. The Act applied only to traders and the term "trader" was very strictly defined. In 1844, an Act for the relief of non-traders was passed, by which such persons were protected from arrest under civil process. In 1864 a new Insolvent Act was passed which applied in Lower Canada to traders only, but in Upper Canada to all persons. This Act was repealed in 1869, and the Insolvent Act of 1869, which applied to traders only was substituted. The Act of 1869 was by its terms limited to four years, but in 1874, it was continued until the following year, and in 1875, a permanent Act was passed applicable to traders only, and this Act was repealed on the 1st of April, 1880.

In New Brunswick prior to Confederation there was no bankrupt or insolvency law, nor any provision for the distribution of a person's estate other than by ordinary process, and there was no law against preferences.

In Nova Scotia a remedial law intended to supplement and mitigate the law of imprisonment for debt was in force before Confederation and in British Columbia and Vancouver Island, the English bankruptcy law of 1849, was in force until those provinces became part of the Dominion.