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An administrative history of the Supreme Court of British Columbia with particular reference to the Vancouver.. 1986

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AN ADMINISTRATIVE HISTORY OF THE SUPREME COURT OF BRITISH COLUMBIA WITH PARTICULAR REFERENCE TO THE VANCOUVER REGISTRY: ITS CIVIL RECORDS, THEIR COMPOSITION, AND THEIR SELECTION FOR PRESERVATION By DAISY McCOLL B.A., The University of B r i t i s h Columbia A THESIS SUBMITTED IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE DEGREE OF MASTER OF ARCHIVAL STUDIES i n SCHOOL OF LIBRARY, ARCHIVAL AND INFORMATION STUDIES We accept t h i s thesis as conforming to the required standard THE UNIVERSITY OF BRITISH COLUMBIA October 1986 (S) Daisy McColl, 1986 In presenting this thesis in partial fulfilment of the requirements for an advanced degree at the University of British Columbia, I agree that the Library shall make it freely available for reference and study. I further agree that permission for extensive copying of this thesis for scholarly purposes may be granted by the head of my department or by his or her representatives. It is understood that copying or publication of this thesis for financial gain shall not be allowed without my written permission. Department of History, and School of Library, Archival and Information Studies The University of British Columbia 1956 Main Mall Vancouver, Canada V6T 1Y3 Date 23 April 1987 Abstract Legal h i s t o r y i s s o c i a l history, family history, women's history, economic history, business history, and c o n s t i t u t i o n a l history; i n fac t i t i s a growth industry. Records from the c i v i l d i v i s i o n of the B r i t i s h Columbia Supreme Court furnish the best possible primary sources, the evidence for l o c a l studies i n these f i e l d s . T h i s t h e s i s i s put forward as a p r a c t i c a l guide both f o r scholars who wish to search records from the Vancouver Supreme Court Registry and for a r c h i v i s t s who need a conceptual framework f o r appraising c i v i l court records. I t traces the origin s and common law t r a d i t i o n s of the court, describes court administration and the rules f o r c i v i l procedure, tabulates the kinds of record kept by the c i v i l d i v i s i o n , and works out f o r a r c h i v i s t s a p r a c t i c a l means of sel e c t i o n . i i i TABLE OF CONTENTS Page CHAPTER I Introduction 1 Footnotes to Chapter I 7 CHAPTER II The C i v i l J u r i s d i c t i o n of the Supreme Court of B r i t i s h Columbia 8 Footnotes to Chapter II 3 6 CHAPTER III Record-Keeping Practices of the Supreme Court at the Vancouver Registry 40 Footnotes to Chapter III 63 CHAPTER IV I l l u s t r a t i v e B r i t i s h Columbia Case F i l e s i n Bankruptcy, Divorce, Tort, and Probate 67 Footnotes to Chapter IV 86 CHAPTER V Appraisal of Court Records, and t h e i r Archival Use 87 Footnotes to Chapter V 95 CHAPTER VI Conclusion 96 Footnotes to Conclusion 101 BIBLIOGRAPHY 102 APPENDICES 110 Acknowledgement I would l i k e to acknowledge the generous assistance of Vancouver Court Registry s t a f f who provided "the contextual environment of the record" : C e c i l Akrigg, Merle Drews, Hugh Crisp F u l l e r and H.A. Stephens. I thank Elizabeth Edingerj Faculty of Law, U.B.C, f o r reading the dr a f t and making many h e l p f u l suggestions. And I am g r a t e f u l to Hugh Taylor, School of Library, Archival and Information Studies, U.B.C. for h i s encouragement, ideas, and ta c t . 1 CHAPTER I Introduction In order to demonstrate the value of c i v i l records f o r h i s t o r i c a l research t h i s t h e s i s examines the documents received and generated by the Supreme Court of B r i t i s h Columbia at the Vancouver r e g i s t r y . I t describes the court system and the record-keeping practices of the r e g i s t r y so as to bring the records into proper perspective and help make them accessible to scholars. Accordingly, t h i s the f i r s t chapter provides an h i s t o r i c a l overview, gives an explanation of the court structure today, the l e v e l s of court, and places the Supreme Court of B r i t i s h Columbia i n the hierarchy of the j u d i c i a l system. The second chapter chronicles the h i s t o r y and j u r i s d i c t i o n s of the court p r i m a r i l y from 1858 to 1960, emphasizing the evolution of the Vancouver r e g i s t r y . The whole, somewhat complicated chronicle required a search of the statutes, the sessional papers, and the debates of the l e g i s l a t i v e assembly to get at the basic facts. Historian Hamar Foster, w r i t i n g i n 1984, says, "whereas some work has been done on the j u d i c i a l system p r i o r to 1871, v i r t u a l l y none has been done i n the 30 years following Confederation." 1 The c o l o n i a l period has c e r t a i n l y been well covered, but there are no ready secondary sources f o r the Canadian period that followed. The t h i r d chapter explains the administration of the court: the part played by the r e g i s t r a r and h i s s t a f f , the people with whom the documents are f i l e d , who 2 empanel the jury, make up the court l i s t s , monitor and record the progress of a cause and search records on request. I t explains how the records are kept before and during t r i a l , and the record scheduling procedures. Information f o r t h i s chapter was assembled through the assistance of past and present court r e g i s t r y s t a f f . There follows, i n Chapter Four, an examination of in d i v i d u a l case f i l e s taken from the personal actions, probate, bankruptcy and divorce sections of the Supreme Court, which are stored i n the Court Records Centre at Vancouver. Individuals came to the c i v i l courts of t h e i r own accord. Through the case f i l e we know with immediacy what brought them and how they were served. The c i v i l case f i l e s are unsurpassed i n giving l i f e to the s o c i a l conditions and widely d i f f e r i n g p e r s o n a l i t i e s of the past. The f i f t h chapter o f f e r s a p r a c t i c a l means of s e l e c t i n g f i l e s f o r permanent preservation and draws conclusions. The thesis discusses records i n the B.C. Supreme Court only, and does not, except i n c i d e n t a l l y , r e f e r to c i v i l business under other j u r i s d i c t i o n s . To use the records e f f e c t i v e l y , one requires a knowledge of the structure and procedures of the courts and the common law. The common law system i s adversarial. Audi alteram partem requires that each side present a case. The manner of pleading and the rules of evidence are set out by statute and are printed i n the Rules of Court. 2 There i s an element of t e c h n i c a l i t y i n the system due to a b e l i e f that i t i s the process that protects. Thus, lawyers speak of "due process". The judge decides between 3 the l i t i g a n t s and i s not an investigator as he i s i n the French system; he decides only the questions that counsel r a i s e i n argument. The higher courts are courts of record: they are bound by t h e i r own decisions, stare d e c i s i s , and follow precedent. Notable court decisions are published, and go to make up case law. Besides the adversarial system, the ch a r a c t e r i s t i c s of the common law t r a d i t i o n are public t r i a l s , the i n s t i t u t i o n of the jury, the r i g h t to a speedy t r i a l , the ri g h t of appeal to a higher court, and an independent j u d i c i a r y with the power to grant orders and enforce judgments. A researcher must also understand the hierarchy of the courts i n order to a s c e r t a i n what s o r t s of records may be found i n each and, indeed, where they may be found. The Supreme Court of Canada, the Federal Court of Canada (formerly the Exchequer Court, the Admiralty Court, and the Immigration Court) and the Court M a r t i a l Appeal Court are a l l f e d e r a l l y administered. Their extant records belong to the Government of Canada and may be transferred either to the Government record centre i n Hul l or to the Public Archives of Canada i n Ottawa. The a r c h i v i s t should note that the most important c i v i l cases (as we l l as a l l divorces p r i o r to 1968) were t r i e d either i n Vancouver or i n V i c t o r i a , not i n the j u d i c i a l d i s t r i c t s where the disputes may have originated, except for mining cases diverted to the County Courts a f t e r 1957 (see Chapter II) and those cases held over i n the d i s t r i c t f o r the assizes. Ownership of the obsolete records of p r o v i n c i a l l y 4 administered courts i s shared by the m u n i c i p a l i t i e s and the province. Of those extant from the Vancouver r e g i s t r y a few are i n the Vancouver City Archives, the re s t are on deposit at the Court Services Record Centres or the P r o v i n c i a l Archives of B r i t i s h Columbia. In p r o v i n c i a l l y administered courts, judges f a l l into two categories: those f e d e r a l l y appointed who s i t i n County Court, Supreme Court, and the Court of Appeal, and those p r o v i n c i a l l y appointed judges who s i t i n P r o v i n c i a l Court, formerly c a l l e d Magistrate's Court. (Since 1974 there have been no magistrates.) The old Magistrates Courts had j u r i s d i c t i o n over petty crime, juvenile delinquency, and small claims. But the new Pro v i n c i a l Courts have expanded t h e i r operations, e s p e c i a l l y i n criminal matters. They are now the busiest courts i n the province. Since, i n the beginning, they were established to deal with the le s s serious offences, they were not authorized to hold jury t r i a l s . And so most crim i n a l jury t r i a l s are heard i n County Court. S t i l l , over ninety per cent of c r i m i n a l cases are heard i n P r o v i n c i a l Courts. J u r i s d i c t i o n s i n c r i m i n a l areas are determined by express provisions i n the Criminal Code - a federal statute. But the cases are not always al l o c a t e d to any l e v e l of court. A drug case today, for instance, may be heard i n P r o v i n c i a l Court, County Court, or Supreme Court with l i t t l e regard for the seriousness of the drug offence. P r o v i n c i a l Courts now have exclusive j u r i s d i c t i o n i n juvenile and family matters. There are then three d i v i s i o n s 5 within the P r o v i n c i a l Court system: Criminal, Family, and Small Claims. Family Court judges are s p e c i a l i s t s i n family matters and do not hear c r i m i n a l t r i a l s . County courts have the authority to t r y most cr i m i n a l cases. Those beyond t h e i r j u r i s d i c t i o n are homicide, high treason, in t i m i d a t i n g parliament, mutiny, sedition, piracy, alarming Her Majesty, and br i b i n g j u d i c i a l o f f i c i a l s . In c i v i l cases, County Courts are r e s t r i c t e d by the amount of damages sought. The l i m i t today i s about twenty-five thousand d o l l a r s . According to federal law, divorces are granted only by a Supreme Court judge, but since 1968 a County Court judge can by p r o v i n c i a l law be a u t h o r i z e d t o s i t as a l o c a l judge of the Supreme Court and hear divorce cases. Also, by p r o v i n c i a l law, a County Court judge may be a u t h o r i z e d to hear probate and bankruptcy cases. The Supreme Court of B r i t i s h Columbia has been established as a court of unlimited j u r i s d i c t i o n and can t r y any case. One Supreme Court j u s t i c e resides i n V i c t o r i a , a l l others ( t h i r t y - one i n 1985) reside i n Vancouver, hear cases at the Vancouver Law Courts and go on c i r c u i t twice a year, spring and f a l l , to hold Assize Court i n the other t h i r t e e n j u d i c i a l d i s t r i c t s of the province. The Chief J u s t i c e of the Supreme Court organizes the schedule of cases and assigns the several judges to the various cases i n the Supreme Court. The chief j u s t i c e t r a d i t i o n a l l y assigned a balance, to ensure that not a l l one type of case was t r i e d by any one judge. There are no s p e c i a l i s t s i n the Supreme Court. 6 Today i n B r i t i s h Columbia, a l l the Appeal Court j u s t i c e s (thirteen) reside i n Vancouver and the appeals are heard i n Vancouver. Appeal from the B.C. Court of Appeal may be made to the Supreme Court of Canada, which w i l l hear a case only i f a s p e c i a l p o i n t of law i s i n question or i f the i s s u e i s one of public i n t e r e s t . U n t i l 1949, appeals i n c i v i l cases could be made to the Lord Justices of the Privy Council i n London. Bound copies of these appeal books, an important reference, are i n the Law L i b r a r y at U.B.C. The a r c h i v i s t should also be aware of the records generated by "bureaucratic" law. Regulatory boards, administrative agencies and tri b u n a l s have been used increasingly to d i v e r t l i t i g a n t s from the courts, and many disputes are s e t t l e d by t h e i r o f f i c e r s . For instance, landlord-tenant differences have been adjudicated by the Rentalsman, and employer-employee c o n f l i c t s by the Labour Relations Board. Some of these regulating boards are subject to j u d i c i a l review and some are not. Their powers, procedures and rules of evidence vary. Thus, the Rentalsman could take submissions over the telephone and the Workers' Compensation Board w i l l accept anonymous information, such as, an unsigned l e t t e r from a party who saw h i s "disabled" neighbour climb a fence. This study, however, covers only records whose provenance i s the B r i t i s h Columbia Supreme Court. The foregoing outline of a l l the courts operating i n Vancouver i s to place i n context aspects of the Supreme Court now to be examined i n d e t a i l . 7 Notes to Chapter I •̂Hamar Foster, "Law Enforcement i n Nineteenth-Century B r i t i s h Columbia," B.C. Studies 63 (Autumn 1984), p. 25. 2Information on the court structure i s taken from Perry M i l l a r and Carl Barr, J u d i c i a l Administration i n Canada (Kingston and Montreal: McGill-Queen 1s University Press, 1981) 8 CHAPTER II The C i v i l J u r i s d i c t i o n of the Supreme Court What f o l l o w s i s a look at the growth of the B r i t i s h Columbia Supreme Court from the days of a single i t i n e r a n t c o l o n i a l judge resident i n Langley or New Westminster, to a Supreme Court centred at l a s t i n Vancouver with, i n 1960, fourteen Justices. A subordinate aim of t h i s chronicle i s to draw attention to the p a r t i c u l a r c h a r a c t e r i s t i c s of the B r i t i s h Columbia judicature which made i t unlike the courts i n the American West and unlike the e a r l i e r colonial/Canadian courts that functioned i n the Maritimes and i n Central Canada. For when Upper Canada was severed from the Old Province of Quebec (because the new American s e t t l e r s , i n h e r i t o r s of the common law, could not accept the French l e g a l system) the courts they established were decentralized and informal 1, as i n the United States. Quite otherwise was the s i t u a t i o n i n B r i t i s h Columbia where the court was cen t r a l i z e d and s t r i c t l y formal; B r i t i s h Columbia's version was not an eighteenth century court l i k e Ontario's, set up to accommodate men displaced by the American Revolution, but a mid-nineteenth century court that combined at i t s inception the Common Law, Chancery and E c c l e s i a s t i c a l Courts into one Supreme Court (anticipating by f i f t e e n years s i m i l a r reforms i n England). In the West the granting of c i v i l j u r i s d i c t i o n was consequent on the commercial a c t i v i t y of the region ( f i r s t , the 9 fur trade, then the gold rush). B r i t i s h Columbia's c o l o n i a l system was constituted at the outset to allow f o r economic growth. The f i r s t court, then, was more English than i t s counterpart i n Ontario, and e s s e n t i a l l y energetic, progressive, mercantile, and V i c t o r i a n . Before embarking upon a h i s t o r y of the B r i t i s h Columbia Supreme Court, we must f i r s t recognize that acts to secure law and order, throughout the western t e r r i t o r i e s as a whole, were i n place before the colonies of Vancouver Island and B r i t i s h Columbia were ac t u a l l y established. This contrasts sharply with the Western United States where s e t t l e r s , f a r from an enforceable and c l e a r authority, behaved w i l d l y or took the law into t h e i r own hands. By an act of the B r i t i s h Parliament i n 18032, fur traders venturing i n t o Indian t e r r i t o r y were under the j u r i s d i c t i o n of the Colonial Courts of Upper and Lower Canada; any traders accused of crimes were to be. sent east to the Canadian c o u r t s for t r i a l . But the act applied to c r i m i n a l offences only. As the traders i n Indian t e r r i t o r y became more numerous and organized themselves into companies, disputes r e s u l t i n g from commercial competition became more frequent, and what was urgently needed was c i v i l law that would deal with business, with licences, debts, creditors, contracts, obligation, property and inheritance. Accordingly, i n 1820 an act was proclaimed "for regulating the fur trade and establishing c r i m i n a l and c i v i l j u r i s d i c t i o n within c e r t a i n parts of North America": 3 10 that i s , i n the t e r r i t o r i e s beyond Upper and Lower Canada and outside of the c i v i l government of the United States. The act provided f o r a Jus t i c e of the Peace at each fur-trader f o r t "for persons appointed under the Great Seal to s i t and hold Court of Record f o r the t r i a l of crim i n a l offences and misdemeanors and also of c i v i l causes." 4 These courts were what we would c a l l lower or i n f e r i o r courts. Serious crimes, punishable by c a p i t a l punishment or transportation, and c i v i l actions exceeding £22 had s t i l l to be sent to Upper Canada for t r i a l . In 1821 the Hudson's Bay Company merged with the Northwest Company, moved into the "Oregon T e r r i t o r y " and established headquarters at Fort Vancouver on the Columbia River. This company had a licence from Great B r i t a i n f o r a monopoly of trade west of the Rockies. However, the disputed "Oregon T e r r i t o r y " was granted to the United States, and i n 1843 James Douglas, Chief Factor of the Hudson's Bay Company, established a new trading f o r t on Vancouver Island, Fort V i c t o r i a , which i n 1849, when the colony was proclaimed, had only t h i r t y c o l o n i s t s ! According to Blackstone, English s e t t l e r s l o c a t i n g i n a country where there i s no se t t l e d system of jurisprudence, carry the common law with them. These t h i r t y c o l o n i s t s then were under the common law as well as the aforementioned Acts of George III and George IV. Nevertheless, the B r i t i s h Government immediately passed, on Ju l y 28, 1849, An Act to Provide f o r the Administration of Jus t i c e i n Vancouver's Island, which repealed the o ld acts requiring superior court t r i a l s to be sent to the Canadas and gave the colony on the P a c i f i c the power t o se t up 11 the machinery of English Common Law: a hierarchy of courts, including a supreme court of unlimited j u r i s d i c t i o n with the ri g h t of appeal i n a l l c i v i l cases to the Privy Council i n England (whereas the f i n a l d i s p o s i t i o n of criminal cases remained within the colony). The act gave the court equitable and e c c l e s i a s t i c a l j u r i s d i c t i o n well before the Judicature Acts of 1873-75 (U.K.) merged the administration of law, equity and e c c l e s i a s t i c a l courts i n England. I t declared: The s a i d Supreme Court s h a l l have cognizance of pleas, j u r i s d i c t i o n i n a l l c i v i l cases a r i s i n g within the s a i d colony, with j u r i s d i c t i o n over Her (Majesty's) subjects and a l l other persons whomsoever re s i d i n g and being within the said colony, and s h a l l have a l l such equitable j u r i s d i c t i o n and a l l such powers f o r enforcing and giv i n g e f f e c t to the same as the High Court of Chancery hath i n England . . . . The Court s h a l l have power to appoint and control guardians of infants and t h e i r estates and committees of persons and e s t a t e s of i d i o t s , l u n a t i c s . . . and s h a l l have exclusive j u r i s d i c t i o n i n a l l questions r e l a t i n g to testatory or intestatory matters, and to the v a l i d i t y of w i l l s of personal property as f u l l y as any E c c l e s i a s t i c a l Court hath i n England and s h a l l have powers to grant probate of w i l l s , l e t t e r s of administration . . . and j u r i s d i c t i o n to apply, judge and determine upon and according to the laws now or hereafter i n force within Her Majesty' said colony . . . and j u r i s d i c t i o n and authority to review the proceedings of a l l i n f e r i o r courts of c i v i l j u s t i c e within Her Majesty's said colony, and i f necessary, to set a s i d e or c o r r e c t the same . . . . And so the court's authority began i n 1849, when Governor Blanshard, e s t a b l i s h i n g a lower court to s e t t l e disputes among a few c o l o n i a l coal miners and the Vancouver Island Indians, appointed Dr. J.S. Helmcken as J u s t i c e of the Peace at Fort Rupert. 12 By 1858 the i s l a n d had a white p o p u l a t i o n of 774, and two major centres, V i c t o r i a and Nanaimo. On the vast mainland, "New Caledonia", there were only a few whites, a l l associated with the fur trade. But when gold was discovered i n the Fraser River i n the spring of 1858, people poured into the colony. I t i s said that twenty-five thousand disembarked at V i c t o r i a before the year's end. James Douglas, who succeeded Blanshard as Governor, had no l e g a l authority over the mainland where most of the immigrants were headed. The mainland, or "New Caledonia", was promptly proclaimed the "Colony of B r i t i s h Columbia" and S i r Edward Bulwer-Lytton, the c o l o n i a l secretary, appointed s i x o f f i c i a l s to administer the a f f a i r s of the colony among them an inspector of polic e , an attorney-general and as Chief Justice, an energetic London lawyer who had had first-hand experience f o r t i f y i n g the business law of an expansionist economy i n England. Matthew Begbie arrived i n V i c t o r i a November 16, 1858. T r a v e l l i n g to Fort Langley he read out proclamations from Bulwer-Lytton, one indemnifying c o l o n i a l o f f i c i a l s f o r any acts done before they had legitimate authority i n B r i t i s h Columbia, and the other p r o c l a i m i n g the law of England to be the law of B r i t i s h Columbia. 6 Six months l a t e r , he proclaimed the i n s t i t u t i o n of the Supreme Court of B r i t i s h Columbia, a court having j u r i s d i c t i o n i n a l l cases c i v i l or cr i m i n a l i n the colony and observing the forms and procedures of the common law of England. Adherence to the English Law Act, i n c i d e n t a l l y , remained a c h a r a c t e r i s t i c of B r i t i s h Columbia's courts f o r at 13 l e a s t a hundred and twenty-five years. In December 1859, Begbie issued the general rules and orders of court f o r the colony and ordered that the court should s i t four times a year at Langley. He also set down the regulations admitting b a r r i s t e r s since i n d i v i d u a l s before the law ought to have recourse to a competent defender or advocate. His regulations were less s t r i c t than those i n the Colony of Vancouver Island i n that he would (in theory) allow Americans to be admitted to the bar. His l e t t e r to Douglas, 29 December, 1858, with i t s notion of public law expressed a theme to which j u s t i c e s of the Supreme Court of B r i t i s h Columbia would keep returning: To render a court of j u s t i c e u s e f u l i t i s more important that the sui t o r s should be s a t i s f i e d than that substantial j u s t i c e should be done. Substantial j u s t i c e might be and o f t e n i s done by a s t r o n g despotism; i t might and would be j u s t as o f t e n as not, the result, i f the decision were l e f t to chance. But neither a despotism nor the hazard of dice would be a s a t i s f a c t o r y t r i b u n a l at the present day. Absence of counsel merely inconvenient i n c i v i l cases often operates with extreme cruelty i n cr i m i n a l cases, notwithstanding the utmost anxiety of the Judge. During the f i r s t eleven years, Begbie was the only judge for the colony and proclaimed and maintained the majesty of the law throughout the whole t e r r i t o r y ; the bulk of the cases decided by him were c i v i l and, d u r i n g the g o l d rush p e r i o d , most of these concerned the ownership of mineral claims. Arthur Bushby, the i r r e p r e s s i b l e young Englishman who was h i s court r e g i s t r a r and went on c i r c u i t with him, wrote i n h i s diary, 14 "There are heaps of c i v i l cases here [Yale] - Hicks recorded the same piece of land to three d i f f e r e n t persons within one week."8 Begbie's biographer, David Williams, writes that the co l o n i a l o f f i c i a l s dreaded C a l i f o r n i a n consequences, and that the great accomplishment of the gold mining period was the imposition of a settled, uniform, acceptable and accepted c i v i l law. Disputes and claim jumping questions would be s e t t l e d before matters deteriorated and before violence and crimes resulted. The free enterprise s p i r i t had flourished i n the C a l i f o r n i a mining camps, where each camp decided i t s own rules. These American camp committees excluded Chinese from staking claims and often blacks and Indians too. Here Begbie wrote the rules for prospectors. Very soon a f t e r h i s a r r i v a l , Begbie drafted two esse n t i a l pieces of l e g i s l a t i o n : the Aliens' Act of 1859 and the Gold F i e l d s Act of 1859. The Aliens' Act gave incomers the r i g h t to deal i n land, and granted them an easy means of naturalization. The Gold F i e l d s Act gave d e t a i l s of the rules governing land r e g i s t r a t i o n . The act addressed time l i m i t a t i o n s on working a claim, uses of water (for s l u i c e mining), ditching, improvements, abandonment, mechanisms for tr a n s f e r r i n g claims, creek boundaries, and procedures to follow when a creek changes course. Gold Commissioners were assigned to each area to enforce the mining regulations, and the peace was maintained. 9 For as Judge Begbie wrote to Douglas, the miners had come to B r i t i s h Columbia to make money and not to f i g h t each o t h e r . 1 0 15 The two colonies, Vancouver Island and B r i t i s h Columbia, were united i n 1866. Judge Begbie, keeping h i s residence i n New Westminster, was chief j u s t i c e of the mainland u n t i l he moved to V i c t o r i a i n 1870. From then u n t i l h i s death i n 1894, he was chief j u s t i c e of the province. In 1870, the l e g i s l a t u r e appointed a second Supreme Court j u s t i c e , Henry Pering Pellew Crease. Now both judges resided i n V i c t o r i a and went out on c i r c u i t f o r the assizes. The court system had been financed within the Colony p r i n c i p a l l y from excise duties and r e g i s t r y fees. When the colony became a province of Canada i n 1871, B r i t i s h Columbia's economy was depressed, gold mining a c t i v i t i e s had slowed down and, with only nine thousand c i t i z e n s , the tax base was meagre. Under the terms of confederation, the Dominion Government appointed and paid the s a l a r i e s of the Supreme Court and County Court judges, while the p r o v i n c i a l governments appointed and paid f o r the support s t a f f — the r e g i s t r a r s , s h e r i f f s , court o f f i c i a l s , reporters, ushers and j a n i t o r s . And the province had also to b u i l d the courthouses - a heavy load. A f t e r confederation, i n 1872, the Dominion Government appointed a t h i r d judge to the B.C. Supreme Court, John Hamilton Gray, a former speaker of the New Brunswick l e g i s l a t u r e , one of the "Fathers of Confederation", and a member of the f i r s t Canadian Parliament. 1 1 The judges were a l l well q u a l i f i e d . Matthew Begbie had a degree from Cambridge i n mathematics and c l a s s i c s , was a successful lawyer i n Chancery and a s p e c i a l i s t i n the law of partnership. Crease, l i k e Begbie, was a graduate 16 of Cambridge and a member of the E n g l i s h bar. Both were men of u n f a i l i n g industry with a genuine zest f o r public service. They attended to a l l the d e t a i l s of the courts, went on c i r c u i t (their supervising assizes were almost an arm of government), and did whatever else was essential for the orderly administration of j u s t i c e . Indeed, Begbie, w r i t i n g to S i r John A. Macdonald i n Ottawa, declared, "I never consented to become a d i s t r i c t judge, much les s a county court judge or Gold Commissioner, though I have not hesitated to act i n these capacities when I saw any necessity." 1 2 There were three Supreme Court judges, and the only appeal from t h e i r decisions even a f t e r Confederation was the Privy Council i n London. To make high court appeals easier, the p r o v i n c i a l l e g i s l a t u r e passed the "Judicature Act of 1879" 1 3 authorizing an appeal procedure to the " F u l l Court" i n V i c t o r i a . The F u l l Court comprised three judges of the Supreme Court s i t t i n g together and receiving further evidence on questions of fac t or law; that i s , the act provided f o r a r e - t r i a l , not j u s t an appeal on a question of law. Appeal to the Supreme Court from the Small Debt Court, on the other hand, was merely on a question of law. The main incentive f o r Confederation had been the promise of a transcontinental railway. By 1885, the CPR had completed i t s l i n e to the P a c i f i c Coast, unexpectedly extending i t f i f t e e n miles so that Vancouver, not Port Moody, became the terminus. "Within weeks of i t s incorporation (1886)", Margaret Ormsby 17 writes, "the c i t y had 800 business establishments and a population of 2000." 1 4 The f i r s t government bu i l d i n g on Burrard Inlet, the Custom House, had two log c e l l s , so i t was designated a court house. The C i t y of Vancouver's policeman, Jonathan M i l l e r , l i v e d there and also served as Clerk of the Court. In June 1886, the Maple Tree Square f i r e destroyed the town, but not the "Court House". Judge Begbie held the f a l l assizes there a f t e r the f i r e . No Supreme Court records were kept there; i t d i d not have the o f f i c e s or court r e g i s t r y to f i l e documents. When the c i t y was incorporated the f i v e c l e a r l y defined j u d i c i a l d i s t r i c t s i n the province were: V i c t o r i a , Nanaimo, Yale, Cariboo and New Westminster, each with a resident county court judge and court registry. Vancouver was part of the New Westminster J u d i c i a l D i s t r i c t . I t had i t s own magistrate's court to deal with p o l i c e charges, by-law i n f r a c t i o n s and small debt cases, but no county court r e g i s t r y or land r e g i s t r y . From i t s founding, the city's development was hampered by the lack of a c i v i l court. The P r o v i n c i a l Legislature had granted the sum of $5,000 for a court house; however, that was not s u f f i c i e n t . In 1889, the aldermen petitioned V i c t o r i a for $1,500 more. They needed the extra money because the i n i t i a l grant did not extend to . . . [a] r e g i s t r y o f f i c e , and other s u i t a b l e necessary o f f i c e s f o r the o f f i c i a l s required i n connection with the said court house and r e g i s t r y o f f i c e . . . There i s no Land R e g i s t r y o f f i c e i n the said c i t y of Vancouver, and i n consequence the c i t i z e n s and public continually are put to great 18 inconvenience and expense, by having to go to New Westminster to r e g i s t e r a l l t h e i r conveyances of Real and Personal Estates, and search the t i t l e s to the same. 1 5 I t was a t a x i n g journey t h i r t y m i l e s south t o New Westminster. By then Vancouver was th r i v i n g , having a growing population of 11,000 persons, 2,700 buildings, three chartered banks, and a need f o r a place to conduct ordinary c i v i l business. But the aldermen's hopes were disappointed. The unaugmented court house at Cambie and Hastings (now the s i t e of Vi c t o r y Square) was opened i n October 1890. A.E. Beck was r e g i s t r a r of the County Court, cl e r k of the peace and r e g i s t r a r of b i r t h , deaths and marriages. The Inns of Court Building housing the l e g a l profession was next door to i t on Hamilton Street. S t i l l Vancouver remained part of the J u d i c i a l D i s t r i c t of New Westminster, even though the c i t y had surpassed New Westminster i n population and was only s l i g h t l y smaller than V i c t o r i a . 1 6 Lawyers, now organized into the Vancouver Bar Association, joined the aldermen, businessmen and Vancouver MLA's i n pressing the l e g i s l a t u r e f o r a superior court judge. The l e g i s l a t u r e at l a s t gave way and passed the Supreme Court Act Amendment Act of 1892 1 7 creating the Vancouver J u d i c i a l D i s t r i c t . The Act defined i n d e t a i l geographical boundaries of the D i s t r i c t and provided that "the r e g i s t r y f o r the J u d i c i a l D i s t r i c t of Vancouver be the C i t y of Vancouver." But such was not to be, and the case of Vancouver's Supreme Court Judge provides a lesson i n the u n r e l i a b i l i t y of statutes as evidence i n 19 h i s t o r i c a l reconstructions. For to have a j u d i c i a l d i s t r i c t there must be a resident judge. On the Supreme Court bench were Begbie, Crease, J.F. McCreight, Montague William Tyrwhitt-Drake, and George Walkem (replacing Alexander Robertson). Both McCreight and the l a t e Alexander Robertson had been b r i e f l y resident i n the i n t e r i o r with unhappy and, i n the case of Robertson, t r a g i c r e s u l t s . The arrangement known as " d i s t r i c t i n g " , which sent a Supreme Court judge to reside i n an assigned j u d i c i a l d i s t r i c t , was a t e s t i n g experience f o r the p r o v i n c i a l attorney-general. I t i s true that Begbie had resided i n New Westminster f o r twelve years. He was exceptional; the others were reluctant to leave V i c t o r i a . Theoretically, the judges were to decide the placement among themselves, but they would not send one of t h e i r own t o the Cariboo or Kootenays away from the pleasant amenities of V i c t o r i a , the protocol of Government House, b a l l s , garden parties and regattas. Vancouver was j u s t as remote s p i r i t u a l l y . The p r o v i n c i a l cabinet d i d not have the courage to pick out one judge and send him off. The Attorney-General, Theodore Davie, wrote to the M i n i s t e r of Ju s t i c e i n Ottawa givi n g the reasons for requiring a second r e g i s t r y on the mainland: . . . the amount of l e g a l business transacted i n Vancouver was equal to i f not g r e a t e r than t h a t transacted i n New Westminster, and i s constantly increasing, and great inconvenience has been occasioned not only t o members of the Bar but a l s o t o every business man who had occasion to resort to the courts by the necessity of attending Westminster f o r every petty matter which might a r i s e i n the course of an action. 20 Davie added, I t appeared to me t h a t b e f ore i t would be p o s s i b l e t o advise the proclamation of the Act i t would be necessary f o r you to take the matter i n t o consideration, i n view of the fac t that unless there i s some understanding as to who s h a l l perform the j u d i c i a l duties within the new D i s t r i c t [Vancouver] any attempted creation of the D i s t r i c t would be f u t i l e . . . 1 8 He asked the minister to assign a judge to the d i s t r i c t . The reply from the Canadian deputy asked that Davie "kindly point out any machinery giving the Government the power to assign judges to d i s t r i c t s " and that he knew not how under e x i s t i n g federal l e g i s l a t i o n the matter could be remedied. In Davie's c o n c i l i a t o r y reply to the deputy, he said that the carrying out of the ac t "seems to be a matter of arrangement between the judges themselves, but, f a i l i n g such an arrangement, i t seems to me that the Dominion Government can u s e f u l l y intervene," 1 9 and he referred to the "Thrasher Case." 2 0 Davie wrote, "The D i s t r i c t i n g of the Judges at that time, as i t has always done, gave much trouble so that the Dominion Government intervened then and should now."21 The s i t u a t i o n was so d i f f i c u l t f o r Davie t h a t he went to Ottawa t o d i s c u s s the question w i t h the Minister h i m s e l f . 2 2 A note from Davie to S i r John Thompson, the deputy, affirmed h i s compromise with the minister: the New Westminster County Court Judge Bole's j u r i s d i c t i o n as a l o c a l judge of the Supreme Court had been enlarged to a l l o w him t o s i t i n Vancouver. 2 3 Since Judge Bole's time would be taken up discharging h i s 21 duties i n New Westminster i t i s not s u r p r i s i n g that such an arrangement d i d not s a t i s f y the people of Vancouver. Motions put to the l e g i s l a t u r e by Vancouver MLA's i n 1894, 1895, and 1896 demanding a resident judge a l l passed. 2 4 Four Supreme Court Judges resided i n V i c t o r i a , but none i n Vancouver, i n spite of the volume of l e g a l business transacted there. When Mr. J u s t i c e Pellew Crease r e t i r e d i n 1896, Vancouver MLA's broached the matter i n the l e g i s l a t u r e once again. Member Williams sai d that doubts existed as to the e f f i c a c y of the House's l e g i s l a t i o n : the Legislature should request the Dominion Government (as Davie had done four years e a r l i e r ) that any judge appointed to f i l l the vacancy "should be compelled to r e s i d e at the C i t y of Vancouver, or i n the immediate neighbourhood thereof." 2 5 However, Angus John McColl (later Chief Justice) when appointed, stayed i n V i c t o r i a . The P r o v i n c i a l Cabinet seems to have backed away from the 1892 Act which made provision f o r a Vancouver r e g i s t r y . "A P e t i t i o n from the Vancouver Bar Association" tabled i n March 1901 makes the request again that "one of the judges assigned to the mainland should reside i n the C i t y of Vancouver, and i t i s expedient that a section to so provide be re-inserted i n the S.C. Ac t . " 2 6 But there was s t i l l no action. When Tyrwhitte- Drake r e t i r e d i n 1904, Lyman Duff was elevated to the bench. In his biography of Duff, Williams writes that Duff was "expected to reside i n Vancouver, but though he may have commuted between Vancouver and V i c t o r i a for several months, he kept h i s home i n V i c t o r i a . " 2 7 F i n a l l y , i n the f a l l of 1904, when the court had been enlarged to f i v e , Aulay MacAulay Morrison, the L i b e r a l MP f o r New Westminster, who already l i v e d i n Vancouver, became the f i r s t resident Supreme Court Judge f o r a c i t y which was i n the midst of one of i t s greatest growth p e r i o d s 2 8 as an important seaport, w i t h a r a i l w a y l i n e to S e a t t l e , 2 9 and as a main supplier f o r the hinterland. Much of the l e g i s l a t i o n passed during t h i s time was to ease the i n d u s t r i a l and commercial development of the province. The discovery of the S u l l i v a n Mine at Kimberly i n 1892 prompted railway acts and r a i l r o a d b u i l d i n g to Nakusp, Slocan and on Vancouver Island. The development of mining was f a c i l i t a t e d by an Act f o r the Promotion of the Mining Industry (1894), 3 0 which created a Government Bureau of Mines. In 1895, because of the general prosperity, and i n order to accommodate increased l i t i g a t i o n , the monetary l e v e l f o r s u i t s i n the county courts was raised to a thousand d o l l a r s . 3 1 For many years there had been too much l e g a l business on hold, awaiting the assizes because the l a r g e damages sought meant the case had to be t r i e d i n the hi g h e r court. What was needed i n 1895 was a r e s i d e n t Supreme Court Judge at Vancouver. Raising the f i n a n c i a l j u r i s d i c t i o n of the County Court d i d l i t t l e to r e c t i f y the s i t u a t i o n . As has been noted, an appeal from a d e c i s i o n of the Supreme Court to the F u l l Court had been authorized i n 1879. 3 2 For eighteen years the court had sat only i n V i c t o r i a . To make i t 23 more accessible, the l e g i s l a t u r e r u l e d J J that the F u l l Court would hold s i t t i n g s i n Vancouver and New Westminster, and that i n Vancouver i t would hold f i v e s i t t i n g s a year. In the "Away Courts" (Vancouver and New Westminster), two judges would make a quorum, an unusual allowance since the Appeal Court was constituted to s i t with an odd number so that a majority opinion co u l d emerge. I f the two appeal judges were unable t o concur i n a decision, the appeal would stand dismissed and go to V i c t o r i a . The p l a i n t i f f had the option, of course, of appealing d i r e c t l y to the F u l l Court at V i c t o r i a and thus avoiding the possible expense of two appeal t r i a l s . The l e g i s l a t i o n was but a h a l f - hearted accommodation to mainland business. The next administration would a l t e r i t . The Klondike Gold Rush i n 1898 had had l i t t l e e f f e c t on Vancouver; the gold rush t r a f f i c was from Seattle to Skagway. Quite otherwise was the New Westminster f i r e of 1898. The f i r e destroyed the whole business section of the c i t y , including G.W. Grant's Court House (see Chapter III) and, as a consequence of the disaster, Vancouver was given precedence over New Westminster. Section 14 of the 1899 A c t 3 4 declared that the F u l l Court was to s i t i n V i c t o r i a and Vancouver (at the Victory Square Court House) and that the New Westminster r e g i s t r y writs would appeal to Vancouver, Nanaimo r e g i s t r y w r its to V i c t o r i a , and other r e g i s t r i e s throughout the province to whichever c i t y was preferable. Three judges now constituted a F u l l Court, i n Vancouver as well as i n V i c t o r i a . 24 At the turn of the century, Vancouver was the chief metropolitan area of the province, with a l l the attendant business: insurance companies, r e a l estate, t r u s t companies, banks, ship chandleries, iron works, heavy equipment manufacturers, engineering firms, wholesale groceries, canneries, manufacturers of mining equipment, r e g i s t r a r s of j o i n t stock companies, construction companies, and architects. There was expansion throughout the province i n railway building, i n d u s t r i a l development and mining. 3 5 Richard McBride was premier and minister of mines. The increased revenues from business enabled the government to spend money on the j u d i c i a l system. The McBride administration made a major re-organization of the court system, which included an attempt at decentralization, when i t passed the Supreme Court Act of 1904. 3 6 The c o u r t terms for the quarterly d i v i s i o n of the year were abolished (Hilary, Michaelmas, etc.). Instead, one resident judge had to s i t each day for the t r i a l of c i v i l causes f o r as long as they lasted. The Act added to the Supreme Court's j u r i s d i c t i o n the deciding of c o n s t i t u t i o n a l questions referred to i t by the Lieutenant-Governor i n Council. As i n other cases, decisions had t o be made i n open court w i t h reasonable n o t i c e t o interested persons. Dissenting opinions of the court and reasons f o r judgment i n c o n s t i t u t i o n a l matters were to be published i n the B.C. Gazette. 3 7 There was a r i g h t of appeal i n c o n s t i t u t i o n a l questions. Now the Act divided the province into seven j u d i c i a l 25 d i s t r i c t s : V i c t o r i a , Nanaimo, Vancouver, New Westminster, Yale, Cariboo, and Kootenay. One of the judges (Mr. J u s t i c e MacAulay Morrison) would reside i n Vancouver, one i n Nelson, and three i n V i c t o r i a . 3 8 I t r e i t e r a t e d that the Superior Court judges would take c i r c u i t s f o r four assizes per year. The Act also provided f o r the appointment of county court judges as l o c a l j u s t i c e s of the Supreme Court of B.C., except i n the V i c t o r i a or Vancouver j u d i c i a l d i s t r i c t s . 3 9 The wording suggests that New Westminster D i s t r i c t was now formally conceded to be le s s important than Vancouver. I t reasserted that the F u l l Court had the power to hear appeals, whether f i n a l or in t e r l o c u t o r y judgments, orders, or decrees both from the Supreme Court and from the County Court. Any three judges of the Supreme Court constituted a quorum of the f u l l Court, except when the case concerned a person held i n custody; then two judges might hear the case immediately for "speedy t r i a l " . The a c t set out a wide range of d i v e r s e items: some concerning the administration of the courts (see Chapter III), some pertaining to property and credit. Railway promoters had e f f e c t i v e l y lobbied the l e g i s l a t u r e for concessions, and obtained them. The constructing of l i n e s was not to be restrained "unless irreparable damage [would] ensue." 4 0 And even then, instead of allowing an injunction to stop the railway work, the judge might order the company to pay i n t o the c o u r t enough money "to compensate the applicant f o r the injunction against a l l loss, damage and costs which may be maintained by him by reason of the works or other acts complained of." Railway b u i l d i n g and expansion was the p r i o r i t y . 4 2 As the p r o v i n c e developed to keep up w i t h the growth of l i t i g a t i o n , the County Court Act of 1905 increased the counties to nine and extended the judges' j u r i s d i c t i o n . 4 3 They heard cases involving sums under one thousand d o l l a r s and had equitable j u r i s d i c t i o n i n matters regarding creditors, t r u s t s , foreclosures, l i e n s , performance, c a n c e l l i n g agreement of sale, purchase of lease, maintenance or advancement of infants, d i s s o l u t i o n or winding-up of any partnership, s u i t s r e l a t i v e to water ri g h t s , appointing receivers, granting injunctions, interim orders, sale of r e a l estate, the Intestate Estate Act, and r e l i e f against fraud or mistake. The records of these transactions were f i l e d and kept i n the l o c a l county court r e g i s t r i e s . Their j u r i s d i c t i o n i n probate was bounded by the t e r r i t o r i a l l i m i t s of each court, not by monetary l i m i t s , and a copy of every w i l l proved was f i l e d i n the r e g i s t r y of the County Court while the w i l l i t s e l f and orders granting l e t t e r s of administration were sent to the r e g i s t r y of the Supreme Court at V i c t o r i a . The Act ended the p o l i c y of Supreme Court judges presiding over both l e v e l s of court at the assizes, an expedient the j u s t i c e s from Begbie on had d i s l i k e d . There had also been a curious amendment to the Supreme Court Act i n 1905, which s t a t e d t h a t the wearing or use of the customary o f f i c i a l wig was prohibited i n any court i n the province. 4 4 Richard McBride, the "people's Dick", had backed a motion i n the l e g i s l a t u r e banning the wigs. Although many of 27 the judges and b a r r i s t e r s objected, Mr. Chief J u s t i c e Hunter enforced the r u l i n g , perhaps because J u s t i c e Martin was so keen on the more formal apparel. Hunter and Martin detested each other, only communicating by written messages through the r e g i s t r a r . Nevertheless, Martin continued to wear h i s wig when he sat i n Admiralty, a federa l l y administered court beyond Hunter's j u r i s d i c t i o n . 4 5 The Court House i n Vancouver, designed by Francis Rattenbury (see Chapter III), was begun i n 1906. The c i t y with a population of 50,000 had long outgrown the Hastings Street court: p l a n s f o r a new court house had been submitted by Rattenbury to the Public Works Committee of the Legislature ten years e a r l i e r , i n 1896, awaiting a time when revenues would allow a s t a r t . The Vancouver Stock Exchange had been incorporated i n 1907. There was now a boom on. The c i t y was burgeoning, w i t h docks, warehouses, firms of chartered accountants and architects, contractors, hydraulic engineers, f i n a n c i a l brokers, loan agents, e l e c t r i c a l engineers, s t e e l and wire companies and manufacturers of mining equipment of a l l sorts. The j u s t i c e s were busy at the Rattenbury Court House with matters concerning land conveyancing, contracts, negligence, performance bonds, payment of debts, and fraud. Meanwhile, the Law Society had been urging the attorney general's o f f i c e f o r a second superior court of record. Enabling l e g i s l a t i o n passed i n 1907 authorized a Court of A p p e a l 4 6 (replacing the F u l l Court) to consist of the 28 chief j u s t i c e and three other j u s t i c e s to have the same powers as those v e s t e d i n the Supreme Court, and t o have the same r u l e s of court. The Act allowed f o r four s i t t i n g s a year and spec i a l s i t t i n g s as needed. The Court Appeal was not i n f a c t constituted u n t i l November 30, 1909, when the p r o v i n c i a l L i b e r a l leader, James Alexander Macdonald, was named Chief J u s t i c e of the Court of Appeal, a p o s i t i o n he held u n t i l March 1937, twenty-eight years. The Superior Court j u s t i c e s tended to be long l i v e d and long i n o f f i c e , providing continuity. S i r Matthew Begbie served f o r t h i r t y - s i x years, Crease f o r twenty-six, Hunter twenty- seven, Denis Murphy thirty-two, and Archer Martin from 1898 to 1940, forty-two years, each of the l a s t three as Chief J u s t i c e of B r i t i s h Columbia. In 1910, the l e g i s l a t u r e passed an Act to provide f o r the establi s h i n g of Juvenile Courts, 4 7 an off-shoot of urbanization, for i n three years the city's numbers had more than doubled. I t became necessary to enlarge the new Rattenbury Court House, and the Hornby Street Annex, designed by Thomas Hooper, was added i n 1912. 4 8 Other measures were taken to cope with l e g a l work. Grounds for admission to the le g a l profession were extended. Before women had the vote and before World War I opened up appointments for women, Mabel Penery French, a q u a l i f i e d b a r r i s t e r from New Brunswick, was admitted to the bar of B r i t i s h Columbia a f t e r the passing of a sp e c i a l act, an Act to remove the D i s a b i l i t y of Women as f a r as r e l a t e s t o the Study and P r a c t i c e of the Law. 4 9 29 Some i n d u s t r i a l disputes were diverted from the courts as a r e s u l t of the Workers* Compensation Act of 1917. This Act suited both the employer and the employee, since workers could scarcely a f f o r d l e g a l fees on the one hand, and on the other, a worker's successful action could r u i n a company. The Act was written a f t e r consultation with representatives of the employers' group, organized labour, insurance companies, and the medical profession. The employers assumed the costs of the compensation board, and the claims were taken out of the courts. Further, s t i l l more l e g a l business was delegated to county cou r t judges, when by the Supreme Court Act of 1918, they were designated l o c a l judges of the Supreme Court with regard to the Administration Act, the B i l l of Sale Act, and the Companies A c t . 5 0 In post-World War I days, there was l i t t l e revenue for the court. The province was short of money. I t had taken over the finances of the P a c i f i c Great Eastern Railway, and the automobile was requiring new roads, expensive i n the mountainous t e r r a i n ; but more s i g n i f i c a n t , with the war over there was an i n d u s t r i a l slowdown. Army veterans discharged i n Vancouver found there were not enough jobs to go round. There was widespread i n d u s t r i a l unrest. S o c i a l i s t parties were growing. In sympathy with the general s t r i k e i n Winnipeg, workers i n Vancouver l e f t the shipyards, f a c t o r i e s , streetcars and p r i n t i n g houses. For nearly a month Vancouver had no major newspaper. The Supreme Court's j u r i s d i c t i o n was increased to administer the War R e l i e f Act of 1920. 5 1 30 The economic downturn continued to take i t s t o l l . B i l l went unpaid. By the Supreme Court Act of 1922 judgment debtors could be j a i l e d up t o f o r t y days f o r f a i l u r e to pay the sum ordered or at l e a s t installments of the sum. 5 2 To help r e l i e v e the load on the superior court, the County Court Act was again amended to increase that court's monetary j u r i s d i c t i o n to $2,500, and to allow i t concurrent j u r i s d i c t i o n with the Supreme Court i n a l l questions r e l a t i n g to testacy and i n t e s t a c y . 5 3 Jury t r i a l s i n c i v i l causes were at t h i s time common. The Jury Act of 1922 5 4 defined "person" to mean someone of e i t h e r sex and women ever since have been well represented on j u r i e s (the one exception to the otherwise male dominated law). In the mid-twenties the economy recovered. Indeed, 1926 was the most prosperous year i n the province's h i s t o r y . 5 5 The mines, f i s h e r i e s , hydro-electric business and shipping flourished. The stock exchange was very busy and the courts were busy too. Vancouver was the t h i r d l a r g e s t c i t y i n Canada. An Act regulating Notaries Public showed the growing need f o r l e g a l o f f i c e r s . 5 6 In 1929 there were eighty-three m i l l i o n a i r e s i n Vancouverl Then came the great depression. As the bad times took hold, the l e g i s l a t u r e passed the Companies Act of 1929, an Act that ran to 150 pages, defining and setting out i n great d e t a i l d e f i n i t i o n s of shares, promoters, l i a b i l i t i e s , debentures, mortgages and s e c u r i t i e s , 5 7 d e f i n i t i o n s needed f o r l i q u i d a t i o n , winding-up, and bankruptcy. A government change i n V i c t o r i a l e d to the p a s s i n g of a 31 good deal of s o c i a l l e g i s l a t i o n between 1933 and 1939. The Conservatives had been replaced by the Liberals under T.D. Pattullo. Furthermore, Tolmie's Conservative party had been so discredi t e d that the Cooperative Commonwealth Federation became the o f f i c i a l opposition. The depression having taken i t s t o l l i n Vancouver, the l e g i s l a t u r e passed an Act i n 1935 granting the c i t y of Vancouver powers and conditions under which i t could s e l l land f o r t a x e s . 5 8 Statutes of B.C. for 1936 contain such l e g i s l a t i o n as the Health Insurance Act, Male Minimum Wage Act and Education of Dependent Children Act. The emphasis was on transactions with working people. The Court of Appeal Act 1938 gave that court j u r i s d i c t i o n to hear appeals from divorce and matrimonial causes, 5 9 but t h i s act cannot have come into force. Begbie had ruled i n 1891 that the province could not confer j u r i s d i c t i o n to hear appeals from divorce decrees, 6 0 and his r u l i n g stood. Williams writes of th i s , "Begbie's opinion, often referred to, remained law u n t i l 1965 . . . ." 6 1 While there were few divorces during Begbie's tenure and during the early part of the century, divorce cases rose sharply a f t e r World War I and have continued to r i s e . When the colony proclaimed the laws of England as the laws of B r i t i s h Columbia, that included the Matrimonial Causes Act of 1857 (U.K.), which had taken divorce p e t i t i o n s from the e c c l e s i a s t i c a l courts and/or parliament and placed them before the Upper Courts. The English divorce act defined three categories of marriage break-up: annulment, j u d i c i a l 32 separation, and divorce. Divorce p e t i t i o n s were granted on grounds of adultery added to a second offence such as desertion or cruelty. This was changed i n 1925 when the Divorce Act (Canada) 6 2 allowed the grounds of adultery only. As the divorce rate grew, so grew the movement to broaden the grounds for divorce. But the Court Rules Practice Act of 1941-2 r e f e r r i n g to the Divorce Rules repeated t h a t those of 1925 were v a l i d and b i n d i n g . 6 3 As would be expected, c i v i l l i t i g a t i o n slackened during the Second World War, lesser troubles fading i n face of the war e f f o r t and f u l l employment. Many notable future judges, men l i k e Sherwood L e t t , T.G. N o r r i s , D.R. Verchere and J.C. Bouck served overseas with d i s t i n c t i o n . The judicature at home was strong for i t included the acknowledged four great judges of the pos t - c o l o n i a l period: Denis Murphy, James Coady, J.O. Wilson, and Cornelius O'Halloran. Coady, a graduate of St. Francis Xavier, had come west to teach school at Vernon. Murphy, O'Halloran and Wilson were a l l born and raised i n small communities i n the i n t e r i o r (Murphy and O'Halloran i n the Cariboo, Wilson i n the Kootenays). O'Halloran and Coady were Roman Catholics, Wilson, Anglican. Reputedly, over the years, they were a l l greatly respected by t h e i r brother judges, who would f r e e l y r e f e r to them while d e l i b e r a t i n g over t h e i r own judgments. Post-war, the Supreme Court was increased from s i x j u s t i c e s to seven with the appointment of J.V. C l y n e 6 4 to the bench. Two years l a t e r the court was increased to eight with the 33 appointment of Herbert W. Davey. Davey never attended u n i v e r s i t y but, l i k e Wilson, learned h i s law by practice, having a r t i c l e d with a V i c t o r i a law f i r m a f t e r graduating from high school. He sat on the Court of Appeal from 1954 to 1973 and served as Chief Ju s t i c e of B r i t i s h Columbia from 1967 to 1972. These men's careers i l l u s t r a t e again the English nature of the court: the j u s t i c e s appointed from the ranks of the bar rather than from the law f a c u l t i e s of u n i v e r s i t i e s . The growth and development of the f i f t i e s brought more and more l i t i g a t i o n to the c i v i l d i v i s i o n of the Supreme Court and thence to the Court of Appeal. Vancouver had been f o r some time the main c e n t r e of l i t i g a t i o n and the 1955 Court of Appeal Act s p l i t that court into two d i v i s i o n s to s i t e i t h e r i n Vancouver or V i c t o r i a or both. 6 5 In 1957 long i n d u s t r i a l cases going to appeal and delaying court work resulted i n the increase to seven (from five) j u s t i c e s of appeal. 6 6 Correspondingly the number of Supreme Court j u s t i c e s had more than doubled i n a span of ten years; there were s i x i n 1949 and fourteen i n 1959. Indeed the f i f t i e s had seen another tremendous growth i n the province, s t a r t i n g with the Kemano and Kitimat projects. In 1953 the transmountain o i l pipeline was under way, and i n 1956 the b u i l d i n g of the West Coast Transmission natural gas pipeline to Vancouver. The forest industry was f l o u r i s h i n g . The P.G.E. railway had completed i t s l i n k between Squamish and Vancouver and between Prince George and Dawson Creek. Texaco had been exploring f o r o i l and gas i n the Peace River. Japan wanted 34 minerals i n great quantities. This was the f i r s t movement of c a p i t a l i n a b i g way into the province since the McBride years. W.A.C. Bennett's government b u i l t Peace River Hydro and expropriated the B.C. E l e c t r i c : the resultant s u i t was the lon g e s t case heard i n the c i v i l d i v i s i o n of the Supreme Court of B r i t i s h Columbia, when Mr. Ju s t i c e Sherwood Lett handed down h i s decision i n July, 1963. Competitive enterprise generates l i t i g a t i o n . Nowhere i s t h i s t r u e r i n B.C. than i n the mining industry. Both the Mineral Property Taxation Act 1957 and an Act to Amend the M i n e r a l Act 1957 ( B i l l 91) had great impact i n the mining i n d u s t r y . 6 7 To keep up with mining cases, the County Court was granted concurrent j u r i s d i c t i o n with the Supreme Court within the t e r r i t o r i a l l i m i t s of the county courts i n a l l personal actions a r i s i n g out of the business of mining (other than coal mining); that i s , i n the actions r e l a t i n g to supplies, trespass, mineral claims, foreclosures, l i e n s on mineral claims or mining properties, performance, mining partnerships, and s u i t s r e l a t i n g to water rights. In such cases, a p l a i n t i f f could f i l e h i s s u i t s i n the d i s t r i c t County Court for speedy t r i a l , always allowing that any defendant who objected to being heard i n the county c o u r t might apply to a judge of the Supreme Court i n Chambers f o r an order to t r a n s f e r the a c t i o n t o the Supreme Court. 6 8 Mining disputes kept both l e v e l s of court busy. Problems of family law, divorce and matrimonial cases were accelerating; the B.C. Supreme Court Act 1960 changed the 35 procedures. Henceforth, divorce and matrimonial causes would be commenced by a w r i t of summons instead of a p e t i t i o n and the p r a c t i c e and procedure would be the same as for other actions so commenced i n the court (see Chapter I I I ) . 6 9 By 1965 the provinces could empower county court judges to hear divorce cases. The period 1858 to 1960 can be taken as a unit; for, allowing that cases varied i n reaction to l e g i s l a t i o n and the times, the procedures and goals of the court were v i r t u a l l y unaltered: the influence of the Bible and the Mosaic law evident. The c i v i l business of the Supreme Court, whether i n guardianship, probate, bankruptcy, divorce or private wrongs i n t o r t , contract, and property ebbed and flowed with the commercial and i n d u s t r i a l development of the province. While the a s s i z e s and the county co u r t s heard the same kinds of cases (the documents f i l e d at t h e i r respective r e g i s t r i e s ) , the more important ones were t r i e d at the centralized Supreme Court s i t t i n g i n V i c t o r i a or, l a t t e r l y , Vancouver. The background and dynamic of each of the colonies i n Canada was d i f f e r e n t ; each i n turn d i f f e r e d from i t s American counterpart. In order to do accurate studies on l o c a l a pplications of the common law there must be a c a r e f u l examination of s i g n i f i c a n t numbers of records. 36 Notes f o r Chapter II •̂R.C. Risk, "The Law and the Economy i n Mid-Nineteenth Century Ontario: A Perspective", i n Essays i n the History of Canadian Law, ed. D.H. Flaherty, 2 vols. (Toronto: University of Toronto Press, 1981, v o l . 1, p. 91. 243 George I I I , c. 38 (U.K.). 3 A c t s 1 and 2, George IV, c. 66 (U.K.), c i t e d i n F a r i r . 4 I b i d . 512 and 13 V i c t o r i a , c. 48 (U.K.), c i t e d i n Fa r r . Proclamations and Ordinances of B r i t i s h Columbia, 1858- 1864 No. 7, 20. 7 P r o v i n c i a l Archives of B r i t i s h Columbia (hereafter PABC). Begbie Colonial Correspondence 1858-1859, f i l e 142 A. 8Dorothy Blakey Smith, ed., "Diary of Arthur Thomas Bushby", B r i t i s h Columbia H i s t o r i c a l Quarterly Vol. XXI, (1957- 58):149. 9 D a v i d W i l l i a m s , ". . . The Man f o r a New Country" (Sidney: Grays Publishing Ltd., 1977), pp. 64-66. 1 0PABC. Begbie Colonial Correspondence 1858-1859, f i l e 142B. i : LGray was the author of Confederation: The P o l i t i c a l and Parliamentary History of Canada from the Conference at Quebec i n October, 1864, to the Admission of B r i t i s h Columbia i n July 1971. 1 2 W i l l i a m s , The Man, p. 171. 1 3 S t a t u t e s of B r i t i s h Columbia 1879 (hereafter SBC), c. 12, s. 5,6,7. 1 4Margaret Ormsby, B r i t i s h Columbia: A History. (Vancouver: Macmillan of Canada, 1958), p. 297. 1 5Vancouver Archives. Cit y Clerk's Series 1. Special Committee F i l e s . Correspondence Outward 1889, f i l e s 1513, 1514. 1 6 I n 1891, the population of the three c i t i e s was very close: New Westminster 17,886; Vancouver 18,229; V i c t o r i a 18,538. 37 1 7 S t a t u t e s of B r i t i s h Columbia 1892, c. 12, s. 3 ( f ) . 1 8Attorney-General's Correspondence July-November 1892, reprinted i n the B.C. Sessional Papers 1894, pp. 1195, 1196. 1 9 I b i d . 2 0 I n the "Thrasher Case" (1882) 1 BCR are found the facts of the terms of the J u d i c a t u r e Act 1879 (B.C.), i.e., t h a t the l e g i s l a t u r e had the power t o make the Rules of Court and a s s i g n judges to d i s t r i c t s , not the j u d i c i a r y . 2 1 B r i t i s h Columbia Sessional Papers, p. 1196. 2 2 I b i d . 2 3County Court Judges were designated l o c a l judges of the Supreme Court to attend to ce r t a i n interlocutory matters and Chambers matters. A question was asked i n the l e g i s l a t u r e about Judge Bole's authority to hear c r i m i n a l cases i n Vancouver. The Journal of L e g i s l a t i v e Debates, 1984-95, p. 10 2 4 T h e Journal of L e g i s l a t i v e Debates, 1894-95, p. 10. 2 50p. C i t . 1896, pp. 113, 125. The members from Kootenay wanted the new j udge there. 92. 2 6 J o u r n a l of the L e g i s l a t i v e Debates, 1901, app. l x x v i i , 2 7 D a v i d R. Williams, Duff: A L i f e i n the Law. Vancouver: University of B r i t i s h Columbia Press, 1984), p. 56. 28G.W. Taylor, Builders of B r i t i s h Columbia: An Indu s t r i a l History ( V i c t o r i a : Morriss Publishing, 1982), p. 20. 2 9 B e f o r e 1892 one went from Seattle to V i c t o r i a by boat, and then on to Vancouver. 3 0SBC 1894 C 12 S . 32. 3 1SBC 1895 C 11 S . 2. 3 2SBC 1896 c. 11 s. 5. C i v i l appeals from County Court decisions where the amount concerned exceeded $100 could be made to the F u l l Court instead of the Supreme Court. 3 3SBC 1897 c. 12 s. 5 3 4SBC 1899 c. 20 s. 14. 38 3 5Henry Boam, B r i t i s h Columbia: I t s History, People, Commerce, Industries and Resources (London: S e l l s Ltd., 1912), pp. 168-178. 3 6SBC 1903-4 C . 15. 3 7SBC 1903-4 C . 15 S . 3. 3 8SBC 1903-4 C . 15 s. 11-18. 3 9SBC 1903-4 C . 15 S . 26. 4 0SBC 1903-4 C . 15 S . 20 (22). 4 1SBC 1903-4 C . 15 S . 20 (23). 4 2The construction of two new branches of the CNR, the Canadian Northern and the Grand Trunk P a c i f i c , added to the prosperity of the province. 4 3SBC 1905 c. 14 s. 3. 4 4SBC 1905 C . 20 s. 112. 4 5 A l f r e d Watts, "Wigs", The Advocate, Vol. 4, Ju l y 1984, 405-406. 4 6SBC 1907 C . 10 S . 2. 4 7SBC 1910 C . 10 S . 2. 4 8The Vancouver C i t y Council of 1981 preserved one of these courtrooms of Hooper's f o r posterity. Less sublime than Rattenbury's, i t i s now part of the Art Gallery Complex. 4 9SBC 1912 c. 18 s. 1. 5 0SBC 1918 C 21 s. 2. 5 1SBC 1922 C . 16 S . 2. 5 2 SBC 1922 C . 38 s. 2. 5 3SBC 1922 C . 38 S . 2. 5 4SBC 1922 C . 38 S . 2. 5 50rmsby, p. 426. 5 6SBC 1926-27 c 49. 5 7SBC 1929 C . 11. 39 58 SBC 1935 C . 51 S . 4 (c). 59 60 SBC 1938 c. 11 S . 2. Scott v Scott (1891) 4 BCR, p. 136. Cited i n Williams. 6 1 W i l l i a m s , p. 166. 6 2SC. 1925 c. 41. 63, SBC C . 56 S . 4 SBC 1950 c. 14 6 5SBC 1955 C 14 64 6 6SBC 1957 C . 15 S . 2. 2. 3. 6 7According to Mr. E l l i o t (B.C. Chamber of Mines), the Deputy Minister of Mines, J. Walker, a geologist, made changes that greatly annoyed the mining industry. For instance, finding f a u l t with the survey posts t h a t had up t i l l then been the manner of marking a c l a i m , he demanded a re-survey of the lands. As well as the mineral r i g h t s , the claimers had owned the timber used for working claims. He ruled they had no r i g h t to the timber, which was managed by forest licences. 68 69 SBC, 1957 C . 15 s . 4. SBC Supreme Court Act, 1960 c. 11 s . 3. 40 CHAPTER III Record-Keeping Practices of the Supreme Court U n t i l the nineteenth century, the records of the common law courts were kept permanently so that precedent could be followed and the old records exhibited to demonstrate the law's consistency, or i f new precedents were set, the circumstances that l e d to the new rulings. The Supreme Court was a court of r e c o r d from i t s i n c e p t i o n . The County Court i n B r i t i s h Columbia became a court of record i n 1885, the Family Court i n 1943. The Coroner's Court, l i k e the Supreme Court was always a court of record. G i f f a r d Halsbury, the nineteenth century j u r i s t , makes a d i s t i n c t i o n between courts of record and courts not of record: "The former have the power to f i n e or imprison . . . and i n the case of c i v i l t r i a l s , t o hear and determine actions i n which debt, damages or value of the property claimed i s forty s h i l l i n g s , or above."1 The King's court held at Westminster and l a t e r at assizes i n the c o u n t i e s was one "where the k i n g a s s e r t s t h a t h i s own word as to a l l that has taken place i n his presence i s incontestable. This p r i v i l e g e he communicates to h i s own sp e c i a l court; h i s testimony as to a l l that i s done before i t i s conclusive." 2 Thus S i r Edward Coke, the common law defender of Stuart England says, " I t i s c a l l e d a record, f o r i t recordeth or beareth witness to the t r u t h . . . i t hath t h i s sovereign p r i v i l e g e t h a t i t i s proved by no other but by i t s e l f . " J The formal records are i n f a l l i b l e and permanent. Halsbury writes, i n t h i s regard, "a record i s a w r i t i n g on Parchment."4 The deliberations of the other Courts, such as Admiralty, Star Chamber and the E c c l e s i a s t i c a l Courts, were not on parchment and presumably did not have to be retained. But the records of the high c o u r t came t o be considered as "a part or a ground of the law of England." 5 They formed the precedents of the law and i n an age before p r i n t i n g had to be permanently kept; hence the need f o r parchment. The people preferred the King's court because i t seemed to be more objective, and free from the influence of l o c a l p e r s o n a l i t i e s . Writs were often f i c t i t i o u s l y framed within a formula to make sure the action would q u a l i f y f o r t r i a l before the King's Court, the upper court. 6 But the grounds f o r bringing concerns to the upper court have expanded over the centuries. In the c i v i l d i v i s i o n of the Upper Court or Supreme Court of B r i t i s h Columbia there are (a) c i v i l causes or personal actions i n t o r t s (wrongs), contract, property, and c i v i l r i g h t s (2) bankruptcy (3) probate (4) divorce (5) guardianship and procedures conferring status. A personal action, Smith v. Brown arises out of the transgressing of a basic p r i n c i p l e or r i g h t rooted i n the common law. The basic p l a i n t s i n such causes have t h e i r o r i g i n s i n the Middle Ages and can b r i e f l y be explained as follows: 42 novel d i s s e i s i n - I have been evicted from my customary or lawful tenements. assumpsit - You undertook to mend my dyke, now the f i e l d i s flooded. morte d'ancestor - This was family property, I should be i n possession of i t . debt - I l e n t him a sum and he i s forgetting about i t . deceit - Everything looked good enough on the surface but the wheat underneath was mouldy. To s t a r t an a c t i o n , the w r i t i s i s s u e d from the r e g i s t r y t o the defendant summoning him i n the Queen's name to appear and answer the allegation. The defendant f i l e s h i s answer; fo r example, "The p l a i n t i f f l e t the sack of wheat l i e outside i n the r a i n as t h i s a f f i d a v i t of h i s neighbour shows." In c i v i l courts what are not "causes" are "matters". Most matters are f i l e d as b i l l s of p e t i t i o n supported by the proper a f f i d a v i t s . A "matter" might be c a l l e d "In re Smith": bankruptcy - I have l o s t a l l means of paying my business debts and simply cannot be hounded any further. probate - When I die my personal and r e a l property i s to be disposed of according to my instructions and these are the executors I e l e c t to administer my terms. lunacy - The subject i s non compos mentis and cannot look a f t e r h i s own a f f a i r s , nor i s he capable of f i n d i n g an attorney to look a f t e r h i s business. The court w i l l have to appoint a 43 person to do so. custody of infants - I make application to be guardian of t h i s unprotected infant. divorce - We have been joined i n holy matrimony but can no longer endure the bond. These p l a i n t s and matters are t r i e d i n open court; the t r i a l i s supported by documents f i l e d i n the r e g i s t r y , which are kept as a record. Lord Denning states: The record must contain at least the document which i n i t i a t e d the proceedings, the pleadings, i f any, and the adjudication, but not the evidence, nor the reasons unless [the court] chooses to incorporate them. 7 Documents i n i t i a t i n g proceedings i n the c i v i l d i v i s i o n are, then, e i t h e r writs or petiti o n s . In B r i t i s h Columbia, there has not been the complication of d i f f e r e n t kinds of wri t or "form of action" (trespass against the peace, trespass on the case), as there had been i n Ontario. In both the colony and the province, a common w r i t has always been used. The "one schedule form" i s referred to i n the B.C. Supreme Court Rules of 1880, "Personal actions whether of debt, damages, personal c h a t t e l , contract, t o r t , taking or detention, ejection, or i n any matter e c c l e s i a s t i c a l , a l l such personal actions s h a l l be commenced by a wr i t of summons i n accordance with the one schedule form copied from the 1852 English Act . . ."(the act which Begbie had invoked i n 1858) and "every such writ of summons . . . s h a l l contain a true and succinct statement of the p l a i n t i f f ' s cause 44 or cause of a c t i o n . . . ." Further, " p a r t i c u l a r s of the p l a i n t i f f ' s demand s h a l l be endorsed i n the writ." 9 And so t h i s manner of f i l i n g a w r i t was used to s t a r t c i v i l causes i n the Supreme Court of B r i t i s h Columbia. For hundreds of years j u s t i c e s of the King's Court went out on assize together with a c l e r k (an o f f i c e r of the Court) who drafted the writs, and who made up and kept the records. J.S. Cockburn writes, "As early as 1285, before the assize system i t s e l f had reached a f i n i s h e d form - i t was l a i d down that - i t i n e r a n t assize j u s t i c e s should be accompanied by the clerks responsible f o r e n r o l l i n g p l e a s . " 1 0 To make the cl e r k accountable f o r h i s records, he was made an associate j u s t i c e of assize. Cockburn says that by the fourteenth century clerks were usually b a r r i s t e r s , younger sons of the gentry, given to service, who considered the p o s i t i o n of c l e r k of the assize a desirable one, and not merely a stepping stone to higher o f f i c e . Their duties were to c o l l e c t the fees, write the records, read the commission at the opening of assizes, make up the records during t r i a l , keep the cause books, the gaol book (noting the pleas and the disposal of the cases), keep the hanging book, and draf t writs of the peace. 1 1 I t was t h i s practice that Judge Begbie followed when he i n s t i t u t e d the Supreme Court of the colony of B r i t i s h Columbia. In h i s f i r s t year Begbie h e l d h i s c o u r t at Langley and went on c i r c u i t to the i n t e r i o r with h i s clerk of assize Thomas Bushby, 1 2 who c a r r i e d the court volumes: the Cash Book, the 45 Cause Book, the Gaol Book and other necessary documents. The next year Begbie moved hi s court to New Westminster, the c a p i t a l of the mainland colony from 1859 to 1866. A building, one and a h a l f s t o r i e s , constructed of board with a canvas c e i l i n g , housed the accommodation of Chief Inspector of Police, Charles Brew. I t had a courtroom, a jury room, and a l i t t l e o f f i c e space, but was c l e a r l y not adequate f o r Begbie's court. He wrote to C o l o n e l Moody, i n charge of P u b l i c Works, on March 4, 1861: Dear S i r , I have the honour again to address you i n respect to the continued absence of any accommodation for a judge and r e g i s t r a r of the Supreme Court. There i s not yet (to my knowledge) any place i n t h i s colony where I have a r i g h t t o p l a c e the s e a l of the records of my court f o r shelter, or to go to w r i t e a l e t t e r , or to attend to any matters at Chambers. . . . What i s now p r i n c i p a l l y wanted i s some accommodation equivalent to judge's chambers and registrar's o f f i c e at home with table, shelves, e t c . 1 4 The two, Begbie and h i s clerk, soon got t h e i r o f f i c e s at New Westminster, equivalent to those "at home". Begbie was fortunate i n having Bushby as r e g i s t r a r . Bushby was the sort of "younger son" English gentleman who f i l l e d such posts - eager, honourable, and, important on the long c i r c u i t s , companionable. The formal records of the superior court are, as has been stated, i n f a l l i b l e and permanent. Williams noted Begbie's insistence on high standards f o r r e g i s t r a r s : once when the 4 6 Colonial Secretary put forward the name of an unsuitable character, one i n Begbie's words, "not f i t to be an o f f i c e r of the Queen's Court", Begbie threatened to resign i f the man was appointed. 1 5 The attorney-general (Crease) drafted an accommodating statute following the incident, s t a t i n g "The judge s h a l l appoint, remove, and replace persons to act as D i s t r i c t R e g i s t r a r s , " 1 6 and not the Colonial Secretary. The replacement, C.E. Pooley, he respected. He ensured that Pooley had a good horse for the c i r c u i t s and l e f t him h i s books and manuscripts • 17 when he died. Aft e r the Colony became a Canadian Province, Bushby thought r e g i s t r a r s should be federal o f f i c e r s and so, l i k e judges, unaffected by p r o v i n c i a l patronage. But the organization and administration remained p r o v i n c i a l . Here Begbie did not get hi s way. Court procedure i s complex, and c i v i l procedure more complicated than cri m i n a l procedure. Begbie had been a Chancery b a r r i s t e r and, l i k e Dickens, had earned extra money as a shorthand reporter at the law courts. Dickens, with h i s own f l a i r f o r making a court an ass, d e s c r i b e d a scene l i k e many Begbie would have been party to: On such an afternoon, some score of members of the High Court of Chancery bar ought to be - as here they are - m i s t i l y t r i p p i n g one another up on slippery precedents, groping knee-deep i n t e c h n i c a l i t i e s , running t h e i r goat h a i r and horse- h a i r warded heads against walls of words . . . ranged i n l i n e i n a long matted w e l l (but you might look i n vain f o r truth at the bottom of i t ) , between the registrar's red table and the s i l k gowns, with b i l l s , c r o s s - b i l l s , answers, rejoinders, injunctions, a f f i d a v i t s , issues, reference to masters, masters' reports, mountains of c o s t l y nonsense p i l e d before 47 them. Begbie, although not hidebound by regulations, had respect f o r the t e c h n i c a l i t i e s and forms. Forms and procedures "protect external and enduring p r i n c i p l e s . " 1 9 The B.C. Reports give many examples of hi s manner and method, h i s modus operandi, and h i s st y l e . Here i s one: In re A Gway, ex parte Chin Su, i s a case concerning an app l i c a t i o n f o r guardianship of a f i f t e e n year old g i r l . A Gway argues that Chin Su's father (deceased) wanted her to foster Chin Su instead of the family Chin Su had chosen. A Gway had produced as evidence an a f f i d a v i t , translated from Chin Su's language. This i s not admissible. I am t o l d that the contents were translated to her before she swore to t h e i r truth. That i s not at a l l the proper method, she being quite unacquainted with the English language. The a f f i d a v i t should be written i n Chinese and read to or by her, and sworn so; then a sworn t r a n s l a t i o n of that w i l l be used i n the app l i c a t i o n to me. Obviously by the inverse method now proposed the deponent may be made to swear to matters she never intended, and i t would be very d i f f i c u l t to maintain an indictment f o r perjury i n case of fa l s e statements. The application may be renewed. 2 0 I t i s important an a r c h i v i s t understands such situations because the administration of the law was not unreasonably tech n i c a l i n B r i t i s h Columbia. A s l i g h t misnomer i n a wri t (John X Brown instead of John Y Brown) did not v i t i a t e the writ, but " v a r i a t i o n between allegations i n the a f f i d a v i t and the endorsement i s f a t a l " 2 1 (e.g., d i f f e r e n t dates). But again, the 1904 act states, "no appeal s h a l l be defeated by reason of the 48 existence of any i r r e g u l a r i t y or the taking of any preliminary objection r e l a t i n g to a matter of procedure." 2 2 This r u l e may be i n reaction to the load of technical cases, a t h i r d of reported cases, concerning procedure and "forms of action" i n the nineteenth-century Ontario law courts, delaying the business of the Ontario c o u r t s . 2 3 C i v i l procedure i s a p r o v i n c i a l r e s p o n s i b i l i t y and the l e g i s l a t u r e appoints j u s t i c e s to revise the rules p e r i o d i c a l l y . J u s t i c e Tyrwitt-Drake wrote to the attorney-general about the 1888 rules. S i r : I have the honour to report that the rules of court are complete, with the exception of the index, which i s a t e d i o u s task, and which co u l d not be commenced u n t i l the rules were finished. I s h a l l press the matter on with the utmost expedition, but cannot get i t f i n i s h e d by the 14th.s 6. Sept. 1888 M.W. Tyrwitt-Drake 2 4 Some of the judges and lawyers were angry over "innovations" proposed by the rules, such as that a f f i d a v i t s were to be f i l e d at the same time as the w r i t . The S e s s i o n a l Papers f o r t h a t year reprinted the written objections of the Law Society. Of inte r e s t i s , " O b j e c t i o n #3 - the r u l e s i n the main are copied from the English Rules of 1883 and the Ontario Rules of 1888, which supposes the existence of a competent s t a f f of court o f f i c e r s such as do not e x i s t i n the province." 2 5 This i s probably a genuine complaint and not j u s t lawyer's pique. Throughout the early years of the court, Begbie, h i s 49 successors, and the l e g a l profession, had appealed to the p r o v i n c i a l government to increase r e g i s t r y s t a f f . For instance, i n 1889 there were at the New Westminster Registry, only the r e g i s t r a r of the county court and a clerk-deputy; while at V i c t o r i a there was a r e g i s t r a r of the Supreme Court, a deputy r e g i s t r a r of the Supreme and County Court, an usher and a shorthand reporter. (The shorthand reporter i n c i d e n t a l l y received more than twice the salary paid to the "clerk-deputy" i n New Westminster.) 2 6 Certainly the fact of being short-staffed was part of the problem. Gouge, w r i t i n g on court procedure, seems to assume the court r e g i s t r y s t a f f was not competent, f o r he writes, "Crease mentions 'the disorganized state of the early records of the mainland colony'." 2 7 But Crease's reference i s to land conveyancing not to court o f f i c e r s i n the r e g i s t r y , and here, according to the Law Reports,, i s what he said, "In the early days, i.e., at and before 1858 and subsequently, the land t i t l e s of the colony were i n a most confused and chaotic s t a t e . " 2 8 Bushby had noted i n h i s d i a r y the l a r g e number of land t i t l e s u i t s Begbie and he had on t h e i r f i r s t c i r c u i t and pointed to the dishonesty of the land agent, Hicks. Crease goes on, "the mainland pre-emptive laws allowed every conceivable form of squatting under the suggestive name of 'occupation'." 2 9 The r e a l i t y was that, "the population was scanty, scattered and the land i t s e l f of l i t t l e v alue." 3 0 But once the Torrens Land Act (1870) had been passed, giving indefeasible t i t l e , the d i f f i c u l t i e s ceased. Crease said, "there have been no s u i t s 50 since. In eighteen years working of that act no l i t i g a t i o n as to a registered t i t l e has taken p l a c e . " 3 1 The Land Registry o f f i c e s were much better s t a f f e d than the County Court r e g i s t r y at New Westminster. 3 2 But i t i s not the s t a t e of the c o u r t records that Crease c r i t i c i z e d . As t h i s study has investigated the origins of the Vancouver Supreme Court r e g i s t r y , i t s further development now deserves attention. The Vancouver Court House (at Victory Square) begun i n 1890, had i t s o f f i c i a l opening, and f i r s t assize November 17, 1892. I t was a formal a f f a i r , 3 3 the Vancouver lawyers attending i n f u l l court a t t i r e . The s h e r i f f , 3 4 presented Mr. J u s t i c e McCreight w i t h "the usual p a i r of white gloves as he had to report a blank docket," 3 5 a sign there were no crimes to try. There were, as we could expect, many c i v i l ones pending: County Court Judge Bole, giving the main address, touched on case load • nine hundred cases on the l i s t f o r Vancouver i n 1892 i n which $147,000 was i n v o l v e d . 3 6 And Vancouver was the junior court. In 1893 the V i c t o r i a Court r e g i s t r y had eight employees, New Westminster four, Vancouver t h r e e . 3 7 The probate d i v i s i o n s were very busy and could not keep up with the work. The following year ten clerks f o r copying w i l l s joined the V i c t o r i a o f f i c e , where o r i g i n a l w i l l s were regularly forwarded from r e g i s t r i e s throughout the province. New Westminster took on three new clerks and Vancouver one. 3 8 Court s t a f f i n g remained at t h i s l e v e l u n t i l 1898 when two additional clerks were engaged at the Vancouver r e g i s t r y 3 9 to meet the rush of business caused 51 by the New Westminster f i r e (see Chapter II). For, dating from the f i r e of September, 1898, New Westminster r e g i s t r y writs had to be processed at the Vancouver r e g i s t r y 4 0 . U n t i l a new courthouse could be planned and constructed, the New Westminster s t a f f had been reduced to a part-time r e g i s t r a r and j a n i t o r . Many Supreme Court records were l o s t i n the New Westminster f i r e of 1898. The Columbian newspaper reported that the papers were "smoldering inside the vault" but by the use of chemical grenades and a "perfect system of organized assistance" ninety- f i v e percent of the Land Registry papers were saved. 4 1 The f i r e prompted measures to protect the material i n future. In 1899 the l e g i s l a t u r e passed an act which made V i c t o r i a the centre for storing Supreme Court records, "an act to provide f o r s e t t i n g aside c e r t a i n v a u l t accommodation i n the Parliament Building for the use of the Supreme Court." Sec. 1 A vault or portion of vault s h a l l be placed under exclusive control of the D i s t r i c t Registrar of such court f o r V i c t o r i a . Sec. 2 The Lieutenant-Governor i n Council may d i r e c t that any documents, books, or papers which under any law, usage or custom are deposited or kept i n any Registry of the Supreme Court s h a l l be deposited and kept i n said vault or portion of a v a u l t . 4 2 The manoeuvre was i n vain. A note i n the Inventory of the Attorney-General's Department at the P r o v i n c i a l Archives of B r i t i s h Columbia concerning the correspondence 1872-1937 reveals that a f i r e on June 10, 1939 burned a l l the letterbooks of 1872- 1917 and that additional documents were destroyed by flooding i n 52 the basement of the main Parliament Building. Fortunately, the p r a c t i c e of sending Supreme Court f i l e s from Vancouver to V i c t o r i a was reversed by the 1904 Act which declared: Each r e g i s t r y s h a l l be the proper place f o r the deposit and safe keeping of a l l records, books, and documents connected with any proceedings i n the court commenced and pending i n such Registry and f o r any books, papers or documents directed by any law or Rule of Court to be deposited therein; and the D i s t r i c t Registrar appointed to such Registry s h a l l have charge of, and be responsible f o r the books, records, and documents so deposited. 4 The D i s t r i c t Registrar was now responsible f o r the books, records, and documents deposited i n the r e g i s t r y . Before the f i r e , the prestige of the o f f i c e of r e g i s t r a r had suffered when two men were dismissed i n 1896 f o r embezzlement of t r u s t funds: James C. Prevost, who had been r e g i s t r a r of the Supreme Court at V i c t o r i a since 1885 and the chief r e g i s t r a r of the province at the time of the Law Society's written complaint to the l e g i s l a t u r e , and W.H. F i e l d i n g of New Westminster who, as Supreme Court r e g i s t r a r for the j u d i c i a l d i s t r i c t , had been present at the ceremony opening the Vancouver Court House i n 1892. Mr. Prevost would seem to have been e s p e c i a l l y clever or devious. The amount of h i s defalcation was $22,596.14; Mr. Fielding's, $1,416.27.45 An act was quickly passed to appoint an accountant, "as an o f f i c e r of the Supreme Court to have charge of a l l funds paid into c o u r t . " 4 6 Begbie i n the early days had acted as accountant, checking the fee book at the assizes. Cash books at the P r o v i n c i a l Archives of B r i t i s h 53 Columbia show h i s c e r t i f i e d correction of sums. 4 7 Brian Halsey Tyrwitt-Drake took over Prevost's position. He was the son of the Supreme Court judge, born i n V i c t o r i a but sent to school at Charterhouse i n England. He had a r t i c l e d with a V i c t o r i a lawyer and practiced f o r f i v e years before h i s appointment as r e g i s t r a r . Tyrwitt-Drake was a gentleman i n the c l a s s i c s t y l e . He belonged to a V i c t o r i a regiment, was Church of England, a member of the c r i c k e t club, yacht club, g o l f and tennis club, an oarsman and a f o o t b a l l p l a y e r . 4 8 The Law Society presented him with a set of binoculars when he went "to the front" i n 1916. 4 9 The r e g i s t r a r i s a person of status. I t would appear that Judge Cameron, the f i r s t c o l o n i a l judge of the Supreme Court of Vancouver Island, acted as h i s own r e g i s t r a r , and indeed reckoned h i s r o l e as r e g i s t r a r to be worth as much as h i s j u d i c i a l one, f o r a copy of the b i l l of costs shows i n 1854: Judge's Fee estimated at L5.00_ Registrar's Do. estimated at £ 5 . 0 0 5 0 By 1904 the r e g i s t r a r s of V i c t o r i a and Vancouver received the same remuneration, and a f t e r 1907 the Vancouver r e g i s t r y had the largest s t a f f i n the province. The Rattenbury Court House, which began doing business i n 1908, had i t s formal opening i n 1911. The opening became an occasion f o r c i v i c pride, the ceremonial scene re-created i n a l l i l l u s t r a t e d h i s t o r i e s of Vancouver: the Governor-General (HRH the Duke of Connaught), m i l i t a r y bands, bunting, flags, crowds of people. A Cordova 54 Street grocer had a display of the Union Jack made of apples, blue plums and eggs. 5 1 B u i l t of stone and granite with Grecian columns, sculptured l i o n s "couchant", and an a r r e s t i n g central entrance, the Georgia Street Court House was designed i n the n e o c l a s s i c a l s t y l e displaying a magnificent i n t e r i o r of marble, carved cabinet wood and ornate stained glass, and having large balconied g a l l e r i e s i n the major courts; a l l proclaimed and f a c i l i t a t e d a public system of law. 5 2 Business at the Vancouver Court House grew. The year of i t s completion an annex was added on Robson Street. And i n spite of the depletion i n the ranks of the c i v i l service during World War I, the Vancouver Registry had a s t a f f of twenty-six (V i c t o r i a a s t a f f of 10.5). The r e g i s t r a r received the same salary as a County Court judge. 5 3 The r e g i s t r a r has both administrative and j u d i c i a l duties. He i s empowered to swear oaths, take a f f i d a v i t s , and examine witnesses under oath. He may take questions f o r inquiry referred to him by the judge and h i s orders are enforced i n the same way as a judgment of the court. Thus we w i l l see i n d i v o r c e f i l e s a registrar's interim order f o r maintenance payments to a wife, while the case i s pending (see Chapter IV). In the nineteenth century, the r e g i s t r a r drafted the writs and other documents that now a lawyer d r a f t s f o r h i s c l i e n t . But the r e g i s t r a r issues these documents. He taxes the costs; that i s , he goes over, i f asked, the lawyer's b i l l to h i s c l i e n t , and appeal from the registrar's decision on those costs i s to the 55 judge. He sees that minutes of proceedings are kept, a note of a l l p l a i n t s and summonses, and of a l l orders, and of a l l judgments and execution and return thereto, and of a l l f i n e s and of a l l other proceedings of the court, to be f a i r l y entered from time t o time i n a book belonging to the court, which s h a l l be kept at the o f f i c e of the court, and such entries of the said book, or a copy thereof bearing the seal of the court and purporting to be signed and c e r t i f i e d as a true copy by the Registrar of the Court, s h a l l at a l l times be admitted i n a l l courts and places whatsoever as evidence of such entries and of the proceeding referred to by such entry or entries and of the r e g u l a r i t y of such proceeding, without any further p r o o f . 5 4 He has the authority of a constable during the holding of court and he swears i n the new clerks. Registrars give long service. A.G. Smith was D i s t r i c t Registrar at Vancouver from 1916 to 1926, J.F. Mather from 1926-1945; Louis Mendez, 1945 to 1960. The deputy r e g i s t r a r has the same powers as the r e g i s t r a r . 5 5 He does most of the routine work of the r e g i s t r a r . He may not be a lawyer; some have been promoted from c h i e f clerk. For some deputy r e g i s t r a r s that are lawyers i t i s a stepping-stone; they take on the p o s i t i o n f o r the experience and then go into private practice. At the Vancouver registry, the chain of command then i s r e g i s t r a r , deputy re g i s t r a r , chief clerk, and senior clerks, documentation clerks and junior clerks. The chief c l e r k attended to personnel, interviewed new applicants (male) 5 6 for c l e r k s 1 positions, and dealt with s t a f f problems when they 56 arose. He sorted the correspondence, d i r e c t i n g the l e t t e r s to the sections - cashier, divorce, and e s p e c i a l l y probate because requests f o r copies of w i l l s made up a major p a r t of the correspondence. Sometimes as many as twenty copies were requested and then he, the chief c l e r k (as l a t e as 1945) would read the w i l l aloud, the s e v e r a l c l e r k s copying as i n a medieval scriptorium. Some of those copying were World War I veterans serving as j u n i o r clerks. Poorly paid, one drove a t a x i i n h i s off-hours to make ends meet. There were s i x senior clerks each heading a section: Appeal C o u r t ; 5 7 Criminal Court; Cashier; Chambers; C i v i l and Divorce; Probate and Bankruptcy. The procedures were s t r i c t l y regulated. The documentation clerk(s) at the counter would take the w r i t from the s o l i c i t o r or the p l a i n t i f f and a s s i g n i t a number. There was a stamping machine whereby w r i t followed w r i t s e r i a l l y numbered. The cashier, upon payment of the fee, would put the o r i g i n a l w r i t and one copy under seal (that i s , with a hand- pressed seal). Thus the writ was "issued". One sealed copy was kept i n the f i l e (Brown v Smith). The o r i g i n a l went to the lawyer who, having made the number of copies he needed ( i f 2 0 defendants, 20 copies) served each defendant a copy and showed him the o r i g i n a l . N o n - l i t i g i o u s documents may be deposited at the r e g i s t r y for safe-keeping. Regulations under the B i l l of Sale Act required the b i l l of sale to be f i l e d , as well as chattel mortgages, the c o l l a t e r a l i n the financing of loans, and the 57 assignment of debts. These were registered at the cashier's wicket. The cashier also registered c i t y by-laws and registered partnerships. The fee schedule s e t down the cost of each t r a n s a c t i o n at the r e g i s t r y . Today i n the c i v i l d i v i s i o n the p l a i n t i f f pays a f l a t fee of $50.00 to s t a r t an action and to cover a l l subsequent document-processing fees. Nowadays the chambers section i s very busy. During 1983-84 there were 40,000 chamber applications i n the Vancouver reg i s t r y . One judge each week i s assigned to chambers on a rota system: generally he considers uncontested matters - guardianship, family maintenance, estate, injunctions, adjournments, substitute service (permission to publish a summons). The judge t r i e s to answer everyone applying on the l i s t f o r that day, i f not then the next day. A court c l e r k s i t s with the judge taking notes of proceedings on a b i g sheet, 15" x 8". At the end of the chambers session, 4 o'clock, the cl e r k w i l l w r i t e up the r e s u l t s i n the cause book, f i n d the a c t i o n such as Smith v S c o t t and make a note of the change i n t r i a l date, or note the volume number of an order. The Chamber sheets are kept i n a large f o l d e r i n the r e g i s t r y and are bound every three months. Some Chamber orders might get into the Law Reports. The d e t a i l s of the case are i n the case f i l e - the writ, statement of claim, statement of defence, counterclaim, reply, t h i r d party proceedings, exhibits, t r a n s c r i p t of examination for 58 discovery, notice of t r i a l , judgment, garnishee or other court orders to enforce the judgment. The action f i l e gets a number taken from the w r i t and a name. Both the name and number have been entered i n an index. The action or case f i l e (except adoptions or juvenile matters) i s open to be seen by anybody on request, without explanation, and the searches are not noted. However, one cannot look at the exhibits that are i n a sealed envelope i n the f i l e without a judge's authorization. In the c i v i l d i v i s i o n the record volumes (cause books, or p l a i n t books as they are sometimes called) were kept on shelves i n the re g i s t r y . They contain information of each case i n summary. Every document issued i s noted i n the cause book and every process to do with the a c t i o n : the names of the l i t i g a n t s , the nature of the cause, the lawyers' names, a change of lawyer, the date of t r i a l , the judge's name; any order i s noted and any e f f e c t , the judgment, the taxing of costs, the appeal. Public searches are not i n the cause book, nor subpoenas. There were separate cause books f o r divorce p e t i t i o n s s t a r t i n g i n the 1950s, red ones, when divorce became separated from other c i v i l actions. Both were large, heavy volumes about two f e e t wide by two and a h a l f f e e t long. In 1974, they were replaced by a system of automated index cards that, with the press of a button, move to face the clerk. This system has speeded up searches since, previously, only one c l e r k at a time, naturally, could consult a record volume. Pointing to the new "pending card" system, one c l e r k remarked that nobody ever l o s t a 59 cause book. The t r i a l i t s e l f i s well documented by the court clerk, by the o f f i c i a l stenographer, and by the judge i n h i s bench book. The "minute sheet", which the c l e r k has w i t h him i n the courtroom, monitors the progress for he writes down each event, the names of witnesses sworn, examined by counsel, cross examined, exceptions of counsel; a l l are recorded with the times noted. Each judge has a minute book which covers a l l the t r i a l s he hears. The minute sheets are f i l e d i n t h i s book or folder under the p l a i n t i f f ' s name, year, action number; as the case continues the days are counted - Brown v Scott #4 (day four). The o f f i c i a l stenographer reports, i n the main, the evidence, the o r a l testimony, the rulings, the exceptions, and the judge's charge to the jury. By statute he: s h a l l report examinations f o r discovery, the v i v a voce evidence given at the t r i a l and a l l r u l i n g s of the judge during the t r i a l , and a l l exceptions by counsel, and i f the case be t r i e d by a jury the summing up of the judge and the exceptions of counsel, but i t s h a l l not be necessary to report the addresses of counsel to the judge or j u r y . 5 7 A f a i r copy may be made, c e r t i f i e d by the judge, and f i l e d separately as a record i n the case. A t r a n s c r i p t of a case can be very expensive and a l l or part of one only survives as a court record i f the matter goes to appeal. I t i s the l i t i g a n t , or more l i k e l y h i s attorney, who requires a copy. The stenographer's logs and paper tapes (untranscribed) are 60 destroyed a f t e r f i v e years i n accordance with the record schedules. 5 8 (See Appendix B) Judges make t h e i r own notes i n t h e i r r e c o r d books or "bench books" of the evidence, marking the s a l i e n t points, commenting on the r e l i a b i l i t y of witnesses, noting t h e i r own deliberations of the cases at t h e i r l e i s u r e outside the courtroom. These provide good source material f o r researchers. The judgments and orders of the court are recorded i n a judgment book. An o f f i c i a l i n the r e g i s t r y checks the order against the clerk's record and sends the o r i g i n a l and three copies to the judge f o r i n i t i a l l i n g . One i s put into the judgment book, one into the action f i l e and one i s given to each lawyer. Both parties' names are l i s t e d as entries i n the index. The cause book t e l l s what volume number the order i s i n . Judgment books are open to search; creditors or banks needing to know the f i n a n c i a l p o s i t i o n of a c e r t a i n l i t i g a n t w i l l peruse the judgment book. As the court judgment i s paid, corresponding memoranda are entered i n the book. Reasons f o r judgment are kept i n the judge's f i l e . A copy also i s reserved for the judges' l i b r a r y , and one goes to the publishers of Law Reports. Such reports can be lengthy. Thus, Sherwood Lett's reasons f o r judgment i n the B.C. E l e c t r i c expropriation case (1961) ran to 309 pages. The record-keeping practices at the Vancouver r e g i s t r y have been on the whole good, although one chief c l e r k of the 1960s complained that, i n the past, adoptions had been i n t e r f i l e d with orders. However, the clerks i n the main have been conscientious, 61 and the i n e f f i c i e n t or lazy ones were "chased pretty thoroughly by the c h i e f c l e r k or t h e i r section heads." When asked i f they were more c a r e f u l with important cases than with smaller ones, a former c l e r k answered: The b i g corporation cases demanded more work from the c l e r k than the minor ones but the l a t t e r were more in t e r e s t i n g and gave the cl e r k an opportunity to observe and see other sides of a case. The b i g actions were usually very technical and boring. The lawyers were Q.C.'s and there was great money at stake. I t was preferred that the same cl e r k remain on the case throughout i t s term, but t h i s was not always possible and t h i s allows for mistakes, as d i f f e r e n t clerks do not take the same i n t e r e s t i n some other clerk's t r i a l and may forget or overlook making a c e r t a i n entry i n the cause book. Herein l i e s the i n t e r e s t f o r the cl e r k i n seeing a case through. 5 9 1 The r e t i r e d court c l e r k added, "There i s no chief c l e r k any more, no cause book. The old system was perfect." The a r c h i v i s t should keep such views i n mind; the manner of record-keeping had not changed since the time of Begbie whose court was t y p i c a l of a l l the high courts here r i g h t up to 1977. Evidence supports the contention that the Supreme Court records were conscientiously f i l e d and kept, the common law records permanent and i n f a l l i b l e . At the Rattenbury Court House an accumulation of records (including ones from the Cambie Street Court House) had been stored i n huge underground vaults, vaults that extended well under Georgia Street, u n t i l released by the judges' move to the Robson Street Law Courts. In accordance with the p r o v i n c i a l government's records management project two court records 62 centres, one at Vancouver, the other at V i c t o r i a , were established. Inactive records from a l l the j u d i c i a l d i s t r i c t s go to one of these r e p o s i t o r i e s . For a c t i v e records, today's government record managers prefer the f i l i n g by type system to the case f i l e system. 63 Notes f o r Chapter I I I •̂H.S. G i f f a r d Halsbury, The Lavs of England (London: Butterworth Press, 1912), pp. 346-347. 2W.S. Holdsworth, The History of English Law (Cambridge: Cambridge University Press, 17 vols. 1903-72), Vol. V, No. 2, p. 157. 3Holdsworth, Vol. V, n. 5, p. 158 quoting S i r Edward Coke, Second Insti t u t e . 4Halsbury, Laws, p. 348. 5Holdsworth, History, p. 159. 6Williams, The Man, p. 3 04. 7R V. Northumberland. Stroud's J u d i c i a l Dictionary (London: Sweet & Maxwell Ltd., 1974) s.v. "record". 8See Milson, The Foundation of the Common Law (Cambridge: Cambridge University Press, 1970). 9Jesse F. Gouge, " C i v i l Procedure i n the Superior Courts: the B.C. I l l u s t r a t i o n 1849-1880" U.B.C. Law Review (1979), 13, pp. 338-379. 1 0J.S. Cockburn, "Seventeenth-Century Clerks of Assizes - Some Anonymous Members of the Legal Profession", The American Journal of Legal History 13 (1964), p. 316. i : L I b i d . p. 317. 1 2Postmaster General of the United Colony (when there was a d e f i c i t he made i t up h i m s e l f ) County Court Judge at New Westminster i n 1867. L e g i s l a t i v e Council of B.C. 1868-1870. He had been f i r s t rector's warden at Holy T r i n i t y Church, 1860. Af t e r h i s death i n 1875 the congregation dedicated a stained glass window at Holy T r i n i t y Church, with the i n s c r i p t i o n "The Memory of the Just i s Blessed." The Church and window were destroyed by the f i r e of 1899. 1 3Smith, Dorothy Blakey, ed. "Journal of Arthur Thomas Bushby, 1855-59", BCHQ Vol. XXI (1957-58)1:83-198. In h i s journal Bushby gives a most l i v e l y and d i v e r t i n g account of h i s c i r c u i t s and adventures. 64 1 4 C i t e d i n The Court House of New Westminster, Heritage Preservation Foundation of New Westminster. Cloverdale, B.C. D.W. Friesen & Sons Ltd. n.d., p. 16. 1 5 W i l l i a m s , p. 60. 1 6The Laws of B.C. revised - c o l o n i a l 1865, sec. 2. 1 7 W i l l i a m s , p. 278. 1 8 C h a r l e s Dickens, Bleak House (London: Oxford University Press, 1962), p. 2. 19S.M. Wexler, Materials on Legal I n s t i t u t i o n s (Vancouver: U.B.C. Faculty of Law, 1975). 2 0 I n Re Gway. 2 B.C. Reports, p. 343. 2 1 B a k e r v Dalby (1894) 3 BCR, p. 289. C i t e d i n J. Kaworsky and H.A. Stephens, B r i t i s h Columbia Practice (Vancouver: Commercial Stationers, 1968). 2 2Supreme Court Act 1903-04 c.2 s. 94. 2 3R. C. Risk, "The Law and the Economy i n Mid-Nineteenth Century Ontario: A Perspective" i n Essays i n the History of Canadian Law, ed. D. Flaherty, Vol. 1 (Toronto: The Osgoode Society, 1981), p. 94. 2 4B.C. Sessional Papers,. 1888, p. 237. 2 5B.C. Sessional Papers, 1888, p. 237. 2 6Estimates. B.C. Sessional Papers, 1890, p. 335. 2 7Gouge, op. c i t . , p. 340. 2 8 I n Re Shotbolt (1888), 1 BCR, p. 343. 2 9 S h o t b o l t , p. 343. 3 0 S h o t b o l t , p. 345. 3 1 S h o t b o l t , p. 345. 3 2Estimates. B.C. Sessional Papers, 1890, p. 335. 3 3 A n account written f o r the "News Advertiser" by L.G. McPhilips K.C. was reprinted i n The Advocate, Vol. 1-2, 1943- 44, pp. 189-191. 65 3 4B.C. Sessional Papers 1892 have s h e r i f f s at V i c t o r i a , New Westminster, Cariboo, and Yale but not Vancouver. 3 5 M c P h i l l i p s , p. 189. 3 6 I b i d . 3 7B.C. Sessional Papers, 56 V i c t o r i a , p. 579. 3 8B.C. Sessional Papers, 57 V i c t o r i a 1874, Vol. 1, p. 749. 3 9B.C. Sessional Papers, 61 V i c t o r i a 1898. 4 0S.B.C, 1899 C 20 s. 7. 4 1 T h e Columbian Sept. 21, 1898. Cited i n The Court House of New Westminster, op. c i t . , p. 25. 4 2S.B.C. 1899 C. 21. 4 3 I n v e n t o r y Attorney-General's Department, PABC. 4 4SBC 1963-4 C. 15 s. 34. 4 5Debates of the L e g i s l a t i v e Assembly, 59 V i c t o r i a 1899, p. 15. 4 6B.C. Statutes 1899 c. 21. 4 7 P r o v i n c i a l Archives of- B r i t i s h Columbia, Cash Books, 1866-1871. 4 8 S c h o l e f i e l d , B r i t i s h Columbia Biographies Vol. 11, (Vancouver: Clarke Publishing Co., 1914), S.V., p. 1081. 4 9 A l f r e d Watts, Q.C. Lex Liborum Rex: History of the Law Society of B r i t i s h Columbia 1865-1973. West Vancouver, 1973, p. 19. 5 0"Unauthorized Admiralty Court", Lionel H. Laing, Washington H i s t o r i c a l Quarterly, Vol. XXVI, p. 13. 5 1Information from Judges' Library, Vancouver Law Courts. 5 2 T h e building, recycled to become the home of the Vancouver Art G a l l e r y (Oct. 1983) was completely gutted to accommodate an a r t c o l l e c t i o n valued then at f i v e m i l l i o n d o l l a r s . 5 3 A t Vancouver Registrar, Supreme and County Court 12 mos. @ $310 Deputy Registrar $178 2 Clerks ea 102 66 6 Clerks ea 96 Clerk 92 10 Clerks 40 2 Junior Clerks 80 Junior Clerk 65 Stenographer 65 Stenographer 60 5 4SBC, 1903-4 C . 15 S . 30. 5 5SBC 1903-4 C . 15 S . 31. 5 6 T h e f i r s t woman court c l e r k at the Supreme Court i n Vancouver was Sandra Hanson, appointed i n 1971, from the Kamloops r e g i s t r y . 5 7 T h e Appeal Court since 1982 has had i t s own re g i s t r y , with Jennifer Jordan i t s f i r s t r e g i s t r a r . 5 8SBC 1903-4 C . 15 S . 74. 5 9 I n t e r v i e w by the author with Hugh Crisp F u l l e r , r e t i r e d court c l e r k , Vancouver, February, 1984. 67 CHAPTER IV I l l u s t r a t i v e B r i t i s h Columbia Case F i l e s i n Bankruptcy, Divorce, Tort, and Probate The focus of t h i s study now s h i f t s t o an examination of case f i l e s which were taken from series stored at the Court Records Centre, Vancouver (see Appendix C): Bankruptcy f i l e s from the 1930s and 1940s, Divorce from the 1940s, C i v i l Causes, 1950s, and microfilmed Probate r o l l s from the 1950s. For i l l u s t r a t i o n , the best method of describing the f i l e contents seems to be simply the anecdotal one. Let us take i t as an arc h i v a l display of wares. At the Vancouver re g i s t r y , the documents were kept i n the case f i l e or dossier system, a system convenient f o r both l i t i g a n t s and historians. In contrast, i n j u r i s d i c t i o n s where the organization of material i s by type - writs with writs, appearances with appearances, a f f i d a v i t s with a f f i d a v i t s - i t i s d i f f i c u l t , i f not impossible, decades a f t e r the event, to assemble the parts and reconstruct the case. But the type system has administrative advantages. For one thing, i t makes i t possible to dispose e a s i l y of a bulk of records (praecipes, for instance) that are of no value. A t y p i c a l case f i l e i s l i k e l y to contain the following types of document. 1. Writ of Summons The w r i t of summons begins a c i v i l action. Like other court communications, i t i s printed i n elaborate c a l l i g r a p h i c 68 l e t t e r i n g . E l i zabeth the Second, By Grace of God of the United Kingdom, Canada, and her other Realms, Head of the Commonwealth, Defender of the Faith To: (name) (address) We command you tha t , w i t h i n e i g h t days of . . . The order i s made s t i l l more impressive by being emblazoned with court s e a l s and coloured law stamps. On the back of the writ i s the p l a i n t i f f ' s claim: "suffered from personal inju r i e s . " Indeed the wri t alone supplies a good deal of information. I t supplies the r e g i s t r y number, the date f i l e d , the p l a i n t i f f ' s s o l i c i t o r (s), the type of case, and the court where the w r i t was f i l e d . Bankruptcy cases begin with a p e t i t i o n , not a writ. Divorce actions, too, u n t i l 1960 began with a p e t i t i o n . 2. A f f i d a v i t s These are the written declarations drafted under oath. A lawyer w i l l s i g n an a f f i d a v i t t h a t John Doe i s the person referred to i n the w i l l . 3. Appearance In medieval times a case c o u l d not be t r i e d i n the defendant's absence and he would make attempts to dodge the summons as today a defendant might t r y to avoid being served a 69 summons, hoping i f not to stop, at l e a s t to delay proceedings. Hence the appearance, the document s t a t i n g someone w i l l appear to answer the allegation, was i n s t i t u t e d . I t has the date, the name of the action, the name of the defendant's s o l i c i t o r and hi s address. Essoins, excuses for non-appearance, are i n the clerk's notes i n the Chamber's f i l e . 4. Statement of Claim The statement of claim i s more det a i l e d than the w r i t of summons and must be f i l e d within a fi x e d term a f t e r the delivery of appearance. I t gives the p a r t i c u l a r s that allow a defendant to frame h i s defence. 5. Statement of Defence The statement of defence has t o be f i l e d w i t h i n a f i x e d term or the defendant w i l l lose by default. The statement of defence i s sometimes accompanied by a counter-claim. U n t i l 1970 each a l l e g a t i o n i n the statement of claim had to be s p e c i f i c a l l y denied. Now the new r u l e s a l l o w f o r a general d e n i a l of the claim. Commonly, pleadings terminate with the statement of defence. B.C. Court s t a t i s t i c s f o r 1970 show that thirty-seven per cent of a l l the writs f i l e d had no appearance entered. For the rest, f i f t y - s i x per cent of the cases became dormant at some time between the f i l i n g of the w r i t and the t r i a l . I f the action continues, papers i n the dossier accumulate - amendments to the pleadings, requests f o r p a r t i c u l a r s , counter- claims, r e p l i e s , rejoinders, surrejoinders, rebuttals, surrebuttals, change of s o l i c i t o r , t h i r d party pleadings, examination f o r discovery, p r e - t r i a l conference, a p p l i c a t i o n f o r a jury t r i a l , t r i a l date, t r i a l r e s u l t s , costs, notice of taxation of costs, garnishee orders, appeal from garnishee order, and so on. For Divorce, Bankruptcy, C i v i l , and Probate Series the u n i t i s the f i l e and not the i n d i v i d u a l papers. The f i l e , i t i s said, contains the material (documents and exhibits) which enables a neutral person to follow the matter under d e l i b e r a t i o n . Bankruptcies There i s a good deal of h i s t o r i c a l data i n the early bankruptcy f i l e s . In a box of 1931 bankruptcies, four f i l e s i n a row were interesting. The cover provides the i d e n t i f y i n g information 1. In the Supreme Court of B r i t i s h Columbia. In Bankruptcy 50/31 In the matter of the Bankruptcy Act and In the matter of the E s t a t e of George John Gerrard, Junior; Authorized Assignor 71 Mr. Gerrard i s a moving-picture p r o j e c t i o n i s t at the Capitol Theatre, Vancouver, earning a salary of $75 a week. He has si x children and an i n v a l i d wife. Before September 1930 he had been a supervising p r o j e c t i o n i s t with Famous Players, earning $155 a week, and t r a v e l l e d " a l l through B r i t i s h Columbia, i n s t a l l i n g the t a l k i e s , which occupied anywhere from 3 weeks to 6 weeks i n each town." Converting the "theatres" i n B r i t i s h Columbia to sound occupied a l i t t l e over two years. "In the meantime I started to b u i l d t h i s house. The extent that I intended to b u i l d was $6,000, C i t y H a l l can ve r i f y . " His account, ten pages of v i v a voce t r a n s c r i p t , deserves to be published. He t e l l s h i s story with a l l the freshness of the vernacular, as he r e c a l l s with a happy heart h i s prosperity before events brought him to the bankruptcy court. I t i s o r a l history of a high order. In addition to the t r a n s c r i p t , the f i l e contains other documents-required by the Bankruptcy Act, and the a f f i d a v i t of a chartered accountant with the claims of creditors and l i s t s of assets and l i a b i l i t i e s , running to seven pages. 2. The next one i n the box, Bankruptcy 40/31, i s a p e t i t i o n by the Mackinnon Canning Company. The proceedings were not f i n a l i z e d u n t i l 1938 so that one wonders why winding up the company has taken seven years. Of i n t e r e s t are the minutes of the meeting of the company directors. There i s a long l i s t of the company's ninety-five creditors, including the Anglo- Canadian Warehouse, Alexander Grocery, American Can Co., Canada 72 Box Co., Eastman Advertising, Sunday Growers Lulu Island, Piggly Wiggly - names s t i l l f a m i l i a r to present day Vancouverites. 3. Bankruptcy 39/31, the t h i r d one i n the box, was Janet Pendleton, "trading as Orpheum Hosiery" who, to the question "What i s the cause of your insolvency?" answers "High rent and depressed business conditions." What i s of i n t e r e s t i s that her hosiery supplies come from companies i n Ontario, but she has a business loan from the F i r s t National Bank, Everett, Washington. 4. Bankruptcy 38/31 i s a p e t i t i o n of Perfect Ladies, a business established i n 1926 with assets of $10,000 by Mrs. Sabo and her f i r s t husband. The examination of Mr. Sabo and h i s bookkeeper V i l a Papp reveals a p a i r of incompetent rogues (See Appendix D). The p e t i t i o n i s dropped when t h e i r testimony i s shown to be a tissu e of l i e s . Mrs. Sabo's c i v i l action against Mr. Sabo referred to i n the questioning would provide the ending to the story. The l o c a l newspapers may have reported the shenanigans too. Of bankruptcy f i l e s spot checked from the f o r t i e s and f i f t i e s nearly a l l were interesting. In Bankruptcy 13/40, for instance, Lucky Jim Lead and Zinc Company (N.P.C.), o l d ghost towns are brought to l i f e . The f i l e contains a copy of the report of assets and l i a b i l i t i e s ; the trustee's statement of receipts and disbursements; auctioneer's commission and expenses; p r e f e r e n t i a l c reditors for wages and rent; contingent or other l i a b i l i t i e s ; and the f i n a l d i s p o sition. There i s 73 excellent documentation of the operations of t h i s company- through the 1930s, and the f i l e would provide a good model f o r students wishing to observe procedure i n a company bankruptcy. The t r a n s c r i p t of discovery, j u s t thirty-one questions, demonstrates the businesslike approach: Question 31, "What i s the cause of your insolvency?" Reply: "No cash to pay debts." Divorces P e t i t i o n s f o r divorce come from a l l s o c i a l classes and the records before 1968 can be p a i n f u l l y e x p l i c i t . In a l l these case f i l e s , the investigator finds and reads everything, i n reverse order to that i n which they were f i l e d - the f i n a l document f i r s t , as the most recently added, and the p e t i t i o n l a s t , as the f i r s t paper f i l e d . Thus the appeal from the divorce settlement w i l l come to hand before the decree, which i s before the a f f i d a v i t s ; the answer before the summons and p e t i t i o n . As i n a Pinter play, the i r o n i e s work out i n an aff e c t i n g , often disturbing manner. A l l d i v o r c e f i l e s w i l l p r o v i d e the b a s i c f a c t s of the union: the place of marriage, date of marriage, the number of children and often t h e i r education, the family's standard and s t y l e of l i v i n g , the type of house, household expenses, t h e i r savings, assets, investments, and income. The dossier may contain both ordinary facts and also information that would be unobtainable were i t not f o r the divorce action. Thus, p s y c h i a t r i c reports, medical reports, or reports of the Director 74 of Venereal Disease, which i n a l l other circumstances are s t r i c t l y c o n f i d e n t i a l , become part of the public record when f i l e d as evidence i n a divorce action. I t i s t h i s kind of fact the a r c h i v i s t must keep i n mind when advising a researcher as to procedure. A divorce f i l e may also turn up unexpected miscellaneous information about the times. Thus a f u e l dealer responding to a p e t i t i o n f o r increased maintenance explains why he cannot comply: i n the eight month period ending August 31, A.D. 1958 his business had l o s t $5,318.58. The loss was caused by the decline of sawdust burning heaters, the previous mild winter, and sawmills cutting timber which did not produce burnable sawdust. A l l the divorce f i l e s perused at the Court Records Centre had s o c i a l interest. Let us look at two of them, D & M 585-48 and D & M 585-49. 1. H v H There i s a s t i c k e r on the f i l e . Action no. 585/49 Supreme Court Date of T r i a l T r i a l Judge Manson Judgement Exhibit no. 1 to (e.g. adjourned to 17/10/49) Remarks 75 The p e t i t i o n e r i n t h i s action i s u n c h a r a c t e r i s t i c a l l y a man , and h i s p e t i t i o n "That your Petitioner, then a bachelor, was l a w f u l l y married at the c i t y of Regina . . . " begins the action. There follows (each marked with 585/49) an a f f i d a v i t of service with exhibit D, "a photographic representation of the person whom I served"; the death c e r t i f i c a t e , (exhibit no. 5), of the co-respondent; the marriage c e r t i f i c a t e , (ex. 2); a sealed envelope containing other exhibits; the a f f i d a v i t of service to the co-respondent, the registrar's c e r t i f i c a t e "re pleadings and proceedings", the p e t i t i o n for divorce (ex. A), the a f f i d a v i t of p e t i t i o n , " I , A.H., window d r e s s e r . . ."; the statement of defence, " I , C.H., make oath and swear . . ."; chamber summons for costs; appointment to tax costs; b i l l of costs; the order to confirm the registrar's recommendation f o r interim alimony; d e t a i l s of the husband's finances: weekly salary, bank account, bonds and s e c u r i t i e s , property; the p e t i t i o n for maintenance; the respondent's answer. In a l l there are f i f t y - t h r e e pages i n the f i l e . A p icture of t h e i r l i f e emerges. The p e t i t i o n e r i s a window d r e s s e r at the Army and Navy and i s p a i d $89 a week. He owns a Mercury automobile valued at $1750.00 and says he i s the sole owner of a $5000 house. (His wife had claimed part ownership.) He had moved some time before from the family home, l e t t i n g i t to h i s daughter and son-in-law who, instead of paying rent, were to provide room and board f o r h i s wife. In h i s p e t i t i o n , he accuses h i s wife of an adultery that took place i n 76 a Cordova Street hotel. She has denied i t i n her defence. The death c e r t i f i c a t e shows the alleged co-respondent died a few weeks l a t e r i n a Cordova Street hotel. The p e t i t i o n e r has assumed the c o s t of the d i v o r c e and p a i d $248 i n t o c o u r t as surety. While the divorce action i s pending, h i s wife petitioned for interim alimony. The r e g i s t r a r hears her p e t i t i o n and, ordering the husband to provide f o r her, states that she " i s i n serious need of personal clothing." The husband answers that he has been paying h i s w i f e $2 0 a month "pursuant to an order of the Family Court" and that he has purchased various a r t i c l e s of clothing f o r her. The r e g i s t r a r orders him to provide $72.00 c r e d i t at the Army and Navy f o r c l o t h i n g , to continue room and board for her, and to pay $50.00 a month on the 9th of each month u n t i l t r i a l . His wife, who may have been reduced to pr o s t i t u t i o n , i s found g u i l t y - o f adultery. He i s granted h i s divorce, but the maintenance payments stand. I t i s the kind of d e t a i l which makes the a r c h i v i s t f e e l i t i s important that s o c i a l documents be preserved i n a form which ensures they remain s o c i a l documents and not mere h i s t o r i c a l s t a t i s t i c s . For the t r i a l judge i s the severe and c h i l l y Mr. Ju s t i c e Manson, one of the less respected World War II Supreme Court ju s t i c e s . 2. R v R Case f i l e D & M 585/48 seems to i l l u s t r a t e the X - f a c t o r i n divorce which N e i l Fleishman defines as a psychological flaw i n a woman who s e t s out to marry and destroy a " f a m i l y man."3 As 77 i s t y p i c a l i n such cases, according to Fleishman, the man being sued cannot go to court to contest the divorce or the terms: he maintains that any contact with her i s too upsetting. In t h i s case, the man's wife does, i n fact, r u i n him, pursuing him u n t i l at l a s t he i s too i l l to work. He, a physician, had agreed to pay $500 a month i n 1948 and the f i r s t document i n the f i l e i s a Chambers order reducing the amount of maintenance to $300 i n 1950, $200 i n 1955; and then, on Christmas Eve 1962, to $50. What had happened? At the time of the divorce settlement he had p a i d over seemingly a l l he owed to h i s former w i f e - a house i n Shaughnessy, the car, as well as other assets. Even h i s inheritance, f o r much of h i s property, the lawyer states, had been derived from the estate of his father and mother, was surrendered to her, and he was sent a notice to produce h i s insurance p o l i c i e s , annuities, bonds, and any Dominion of Canada bonds he might have. In her p e t i t i o n f o r increased maintenance, hi s wife itemizes her domestic expenses, food, housekeeping, u t i l i t i e s , f u e l , laundry, cleaners, and car expenses. There had been adolescent c h i l d r e n at the time of the d i v o r c e but by 1955 she had no one to support but herself. She had an income and substantial c a p i t a l for her maintenance on a high standard, with domestic help. Yet he s t i l l had to pay the taxes on the home prop e r t y and was ordered to pay f o r the f u e l o i l t h a t heated her home. Meanwhile he had re-married (his receptionist-bookkeeper) and had h i s new w i f e to support. As a r e s u l t of the maintenance hearing, the d e t a i l s of h i s practice are revealed - h i s charity cases (before universal medicare), the s p e c i a l fees he received 78 for treatments then current and l a t e r discarded, the diminishing amounts he earned as an a n a e s t h e t i s t ($200 to $250 a month i n 1948; and i n 1955, one month when h i s health was poor, he earned only $40.00 ). Also he " l o s t p r a c t i c e through some statements that my former wife made about my a b i l i t y and conduct." His finances were c l o s e l y examined because h i s former wife heard he had bought a piano and radio to furnish h i s apartment. The t r a n s c r i p t of the cross-examination runs to a heavy one hundred and seventy-four l e g a l s i z e pages. Indeed, the deputy r e g i s t r a r , getting impatient with her lawyer, says half-way through, "This i s dragging out and dragging out." Nevertheless they go through h i s bank statements, business accounts, income tax records, l i f e insurance premiums, and even the matter of "holiday money" (paid f o r from h i s health insurance p o l i c y when his second wife's health had broken under the strain.) There are ninety-two documents i n the f i l e and the whole f i l e i s nearly three hundred pages. The l a s t paper we come upon i s the lawyer's very f i r s t l e t t e r on behalf of the defeated Respondent and Intervener, the one answering the o r i g i n a l p e t i t i o n , "We have f i l e d appearance and answer herein but do not intend to appear or defend." These are examples of the sense of s o c i a l ambience that can be derived from the dry formality of two divorce f i l e s , using no more than the same r e g i s t r y number but a d i f f e r e n t year, 585/48 and 585/49. The narrative l i n e i n both divorce f i l e s was easy to follow. D. & M. 585/49, the window dresser's case, was a 79 much thinner f i l e : there were no t r a n s c r i p t s but the story, coming s t a r k l y through the exhibits, a f f i d a v i t s , p e t i t i o n s , reports and orders, had great impact. C i v i l F i l e s C i v i l causes seem on the surface the lea s t i n t e r e s t i n g, and by the 1950s there are a l o t of them. Often a notice of discontinuance i s the f i r s t document to meet the eye on opening the dossier. For example, 1. 1140-59 Lance Egan vs. Robert G i l l i e s , assault and battery claiming damages f o r personal i n j u r i e s ; to wit, abrasions and nervousness. There i s some i n t e r e s t i n the p a r t i c u l a r s of l o s s and damages - l o s t wages, hos p i t a l and doctor's charges, and a new suit. Harry Rankin acted f o r the p l a i n t i f f . 2. 1093-59 was the case of Kelvin S e c u r i t i e s Ltd. vs. Arnold Davis and Alex Petersen. There was an endorsement of the writ, statement of claim, statement of defence, notice of t r i a l . The p l a i n t i f f sought damages f o r trespass and conversion. He owned a truck w i t h a T9 Pioneer F r o n t a l Log Loader, which he st o r e d at 100 Mile House. Davis, a s h e r i f f , had i t seized and sold. There i s some i n t e r e s t i n t h i s s i n c e the a c t i o n i n v o l v e d an o f f i c i a l , the s h e r i f f , and we can i n f e r t h a t there was some kind of dishonesty i n respect to the bids. However, the case did not come to t r i a l : i t was s e t t l e d out of court. Perhaps the 80 s h e r i f f was charged i n criminal court. 3. The next f i l e was 1094-59, O. E. Wells vs. J. S l a c k and C. Slack. J. Slack was a trucker owing house mortgage money to O. E. Wells. The f i l e contained only an appearance, writ, and statement of claim. C i v i l actions range from long technical cases that t i e up the courts f o r months and generate mountains of paper to p e r s o n a l a c t i o n s lodged i n the heat of the moment, t h a t are not pursued. In the box examined there were s i x t y - s i x case f i l e s , only three of which had gone to t r i a l . While conceding there are worthwhile studies to be done on why some cases are abandoned and at what stage, i t i s d i f f i c u l t to j u s t i f y s t o r i n g a l l these dossiers. The lawyers 1 f i l e s would furnish more substance, e s p e c i a l l y i n a case l i k e the one involving the s h e r i f f . Such information furnished by the other discontinued cases would perhaps be better got from the Cause Books. (See Chapter V.) Probate There are geographic j u r i s d i c t i o n s which l i m i t matters i n any court r e g i s t r y ; that i s , a bankruptcy p e t i t i o n of a company doing business s o l e l y i n B r i t i s h Columbia w i l l be f i l e d i n the B.C. Supreme Court r e g i s t r y at Vancouver or V i c t o r i a ; and so too fo r divorce p e t i t i o n s and torts. But probate f i l e s cross p r o v i n c i a l boundaries and frequently extend to other countries. They may contain material f i l e d i n other r e g i s t r i e s , when the 81 court attempts to prove a w i l l , to i d e n t i f y property, or to locate and s a t i s f y legatees. Hence, through the inventories we can compare the attitudes to money matters, as well as to worth, of a C a l i f o r n i a n and a B r i t i s h Columbian. Probate inventories w i l l set out the value and kinds of personal property t y p i c a l l y held by a l l sorts and conditions of men and women, t h e i r obligations, t h e i r schedule of debts and t h e i r areas of investment. Each f i l e , besides the date and place of testator's death, w i l l o r d i n a r i l y give h i s residence, occupation, immediate family, extended family, and friendships. There i s one inventory f o r property and one for b e n e f i c i a r i e s . "Inventory X" categorizes the estate as follows: (1) Real estate (2) Moneys secured by mortgage or agreement of sale (3) Cash and gross amount of l i f e insurance w i t h names of b e n e f i c i a r i e s (4) Book debts and promissory notes, etc., including i n t e r e s t to date of death (5) S e c u r i t i e s f o r money, bonds, stocks, and shares (6) Other property Household goods and fu r n i t u r e Pictures, plate and jewellery Farming implement Horses Horned c a t t l e Sheep, swine, and other domestic animals and birds Farm produce of a l l kinds Stock-in-trade, including good-will of business Other personal property not before mentioned (7) Details of debts and l i a b i l i t i e s for which allowance may be made under section 4 g "Probate Fees Act" (8) Schedule of debts - name and address of creditors, nature of claim, amount of debt, reasons f o r non- payment of debts not paid. 82 "Inventory Y" l i s t s (1) names of the b e n e f i c i a r i e s (2) r e l a t i o n s h i p to the deceased (3) date of b i r t h of l i f e tenants and annuities (4) share of property passing (e.g. one-third) (5) value of property passing 1. Probate 61327 - 56 i s a f i l e of f o r t y - f o u r pages. Marie Didovich, an American c i t i z e n , resident of Los Angeles, C a l i f o r n i a held the mortgage on a house i n Vancouver; accordingly the Los Angeles probate dossier inventorying the estate (valued at $40,020.54) had to be f i l e d i n the B r i t i s h Columbia Supreme Court registry. The estate was divided evenly between her s i s t e r (the executor), who l i v e d i n San Pedro and her deceased brother's daughter, who l i v e d i n I t a l y and India. (The niece's l e t t e r s re the estate, i n c i d e n t a l l y , were written i n good c o l l o q u i a l English.) The probate was complicated by the s i s t e r ' s dying before the courts had resolved the matter. The s i s t e r ' s i n t e r e s t s went to her husband i n Mexico. There i s correspondence attempting (unsuccessfully) to evoke a response from him. Here are some noteworthy facts gleaned from the f i l e of the kind we would expect an a r c h i v i s t to deduce. F i r s t , the o r i g i n a l w i l l had been deposited i n the Los Angeles Supreme Court r e g i s t r y for safekeeping. In 1956, i n B r i t i s h Columbia the w i l l i s drawn up and kept by the s o l i c i t o r , who sends a notice to the Department of V i t a l S t a t i s t i c s . Some Canadian courts, those i n Ontario, f o r instance, do s t i l l keep o r i g i n a l w i l l s . Secondly, there was a caveat i n the w i l l intending to 83 f o r e s t a l l l i t i g a t i o n that seemed by i t s phrasing common form. . . . i f [anyone] s h a l l contest t h i s w i l l , ' I hereby bequeath to such person or persons the sum of One Dolla r ($1) only, and a l l other bequests, devices, and in t e r e s t s . . . s h a l l be f o r f e i t e d . Thirdly, the inventory l i s t s her jewellery, "2 gold vest pocket watches," and shows that she p a t r i o t i c a l l y bought United States War Bonds during World War II, twelve bonds between 1942 and 1945. She had sizable savings accounts i n a number of neighbourhood banks, exhibiting the legendary penchant f o r Americans to hedge against bank f a i l u r e s . Fourthly, i n the document the s i s t e r signed applying f o r l e t t e r s of administration, a fact also exhibiting a c h a r a c t e r i s t i c American sentiment: I.do solemnly swear t h a t I w i l l support the Constitution of the United States, and the Constitution of the State of C a l i f o r n i a , and that I w i l l f a i t h f u l l y perform, according to law, the duties of a dministratrix of the Estate of Maria Didovich, aka Marie Didovich, aka Mary Didovich aka M. Didovich, deceased. 2. Probate 61318 - 56 i s a f i l e of twelve pages. John Hamilton Shairp was a boat builder and resident of Vananda, B.C. The bulk of h i s e s t a t e c o n s i s t e d of the f a m i l y home, recrea t i o n a l property on Texada Island, and a savings account. These thr e e were h e l d i n j o i n t t i t l e w i t h h i s wife. The gross value of the estate $4099.24 (representing h i s half) passed to his widow. Funerals and b u r i a l s were an expensive charge on an estate. Mr. Shairp's Ford Coupe was valued at twenty-five 84 d o l l a r s . His funeral costs were $353.00. 3. Probate 61319 - 56 i s a f i l e of twelve pages. William Coles Gunn had h i s w i l l drawn up at the age of t h i r t y - s e v e n when he was l i v i n g temporarily i n C a l i f o r n i a , at which time he made hi s wife sole beneficiary. The gross value of h i s estate i s $8,067.36. His assets at the time of death were mainly i n r e a l estate. His wife owned h a l f the house and they had j o i n t bank accounts. There were a few d e t a i l s of the funeral arrangements, which cost $572.00. 4. Probate 61323 - 56; twenty pages. Pete Beko, according to h i s f o r t h r i g h t w i l l , Pete "also known under the name of Pero Beko, Restauranteur and Fisherman," leaves an estate of $16,170.93 gross. To ensure the terms are c a r r i e d out he writes, "I hereby appoint my good friends Theodore Lucich and Janko Guratovich both cooks and both of the c i t y of Vancouver . . . to be Executors and Trustees of t h i s my w i l l . " 4 He had died at Campbell River. From the probate inventory we learn that Pete Beko was an enterprising man. He was an investor. His share of "boat p r o f i t s " from the Canadian Fishing Co. was $1,000. He acquired mining stock i n three d i f f e r e n t companies worth $2,340. He owned two pieces of r e a l estate i n Vancouver: one valued at $4,800 i n which he had an equity of $2,000, the other, valued at $10,752.76, he owned outright. He had two small bank accounts, one i n Vancouver; the 85 other was i n Kemano, the s i t e of a power development i n the early 1950s. Perhaps he had been a cook i n the Kemano construction camp. Working long hours i n t h i s i s o l a t e d place was a way f o r a s i n g l e man to make h i s stake. Mr. Beko was a native of Yugoslavia; he bequeathed h i s property i n four equal parts "share and share a l i k e " to h i s mother, s i s t e r , and two brothers i n Yugoslavia. And so h i s new world riches went back to a v i l l a g e i n Yugoslavia where a l l h i s family had l i v e d . Probate f i l e s , while giving some sense of personality, are according to form; they are generally homogeneous and lend themselves to quantitative analysis. The f a c t that probate f i l e s are permanently preserved means, too, that q u a n t i f i e r s w i l l have a continuous series to tabulate changing patterns and discern trends. Crime h i s t o r i a n J. A. Sharpe calculated f o r h i s study using quantitative analysis that he needed a run of at l e a s t s i x t y years. 5 The P r o v i n c i a l Archives of B r i t i s h Columbia has Vancouver r e g i s t r y probate f i l e s on r o l l s of microfilm from 1893 to 1946. The years 1947 to 1966, microfilmed, are stored at the Court Records Centre i n Vancouver and are open to search. S o c i a l h i s t o r i a n s should f i n d a l l these records, which have been c i t e d from the c i v i l d i v i s i o n , usable. Indeed, i n view of the wealth of p o s s i b i l i t i e s s e l e c t i n g case f i l e s f o r a r c h i v a l preservation poses considerable d i f f i c u l t y . 86 Notes f o r Chapter IV x Perry M i l l a r and Carl Baar, J u d i c i a l Administration i n Canada (Kingston and Montreal: McGill-Queen's University Press, 1981), n. 27, p. 229. 2 Divorce lawyer N e i l Fleishman states that ninety per cent of h i s c l i e n t s are women. 3 N e i l Fleishman, The X-Factor (New York: Vantage Press, 1986). 4 The s o l i c i t o r handling the estate was J. J. V o l r i c h , mayor of Vancouver, 1977-1980. 5 J. A. Sharpe, Crime i n Seventeenth-Century England: A County Study (Cambridge: Cambridge University Press, 1983), p. 8. 87 CHAPTER V A p p r a i s a l o f Court Records, and t h e i r A r c h i v a l Use The court administration through i t s record scheduling (see Appendix B) has a decided p o l i c y of systematic s e l e c t i v e retention f o r indexes and appeal books, both volumes the most obvious choice f o r permanent preservation. The choice of which case f i l e s to preserve i s not so clear cut. The Grigg Report i n 1954 avoided altogether discussing processes f o r the appraisal of court records: "In view of the complexity of the subject we have f e l t unable to make an authoritative submission on l e g a l records." 2 That study f e l l to the Denning Committee (1966), 1 whose Report was, i n essence, a comprehensive record schedule for a l l l e v e l s and j u r i s d i c t i o n s of court i n the United Kingdom. While furnishing food for thought, i t i s not a s a t i s f a c t o r y guide f o r a r c h i v i s t s f o r several reasons. Denning recommended that specimens of h i s t o r i c a l , s o c i a l , economic or procedural inter e s t be selected by the r e g i s t r a r s and preserved. He made a case f o r s e l e c t i v e sampling, i n effect, a c o l l e c t i o n of "plums" and thought random sampling, to be advantageous only f o r homogeneous sets of material, such as bankruptcy f i l e s . As f o r the ordinary run of c i v i l cases, once the proceedings had come to an end, he recommended that the papers should be destroyed. Cases of any importance, he 88 reasoned, were written up i n the Law Reports, and h i s report c a l l e d f o r the retention of the case papers of those c i v i l actions that were noted i n the Law Reports, 3 a debatable point. We can see what Lord Denning means. The law r e p o r t s r e p r i n t at most no more than the g i s t of the arguments of counsel and the reasoning and rulings of the judges, whereas the f i l e s have the documents and exhibits that provide the evidence f o r the arguments and the judgment. However, Denning's p o l i c y would r e s u l t i n a duplication of information, f o r the evidence can be i n f e r r e d from the argument, and the argument can be reconstructed from the documents. In any case, f o r the period under discussion, the law reports have t h e i r shortcomings as references i n l e g a l history. Publication of the B.C. Reports was suspended from 1949 to well a f t e r 1960 because of complaints of the Law Society. 4 I t was deemed s u f f i c i e n t to publish notable cases i n The Weekly Western Reports, where they contended f o r space with cases from Manitoba, Saskatchewan, and Alberta. B.C. cases were not f u l l y reported, although b r i e f case notes have been published i n the Advocate, the professional journal of the Law Society since 1949. Denning's report r e f l e c t s administrative and l e g a l rather than schol a r l y values, and administrative and scholarly values do not always coincide. Researchers usually need examples of the mundane and ordinary; while some may seek out c e r t a i n kinds of evidence to support t h e i r own theories. However, the a r c h i v i s t abiding by the p r i n c i p l e of i m p a r t i a l i t y must stand between administrative " i n t e r e s t " and academic "pressure". 5 89 A landmark study i n the appraisal of i n a c t i v e records was prepared by the Massachusetts J u d i c i a l Records Committee under the chairmanship of F.M.S. Hindus. 6 Indeed, there are points to note; however, the s i t u a t i o n i n Massachusetts i s not r e a l l y analogous to ours. For instance, the common law and equity courts had been combined i n B.C. ab i n i t i o when Begbie announced the 1859 Proclamation constituting the Supreme Court. Furthermore, Hindus would have a f a r greater backlog of records than could be found i n B r i t i s h Columbia. And though, perhaps, i n some instances, the several record seri e s may not have been adequately i d e n t i f i e d , our Supreme Court r e g i s t r i e s had t h e i r d i s t i n c t sections: Criminal, C i v i l and Divorce, Probate and Bankruptcy (see Chapter III), an orderly record system, each f i l e c l e a r l y marked with r e g i s t r y number and year. But, i n the Hindus operation i t seems that the records i n i t i a l l y had to be s t r a t i f i e d by separating the c i v i l cases from the c r i m i n a l cases! Hindus next s t r a t i f i e d the c i v i l f i l e s by decades, taking a proportionately larger sample for the early years i n order to make an allowance for increased l i t i g a t i o n as the century advanced. For h i s project he wanted a combination of both random and s p e c i a l l y selected case f i l e s ; the s p e c i a l l y selected ones were s t r a t i f i e d by the evenly spaced years. The f i l e s selected randomly were chosen according to the r e g i s t r y numbers generated by a computer, and t h e o r e t i c a l l y could f a l l i n any year or even a l l i n one year. 90 For the f i l e s selected by decade, the ten year span might seem to be too long to c a t c h the c o n s i d e r a b l e changes i n B r i t i s h Columbia during the f i r s t hundred years. There i s , f o r instance, a marked contrast i n l i f e i n 1915 with that of 1925, 1935, 1945 and 1955, and i t seems u n l i k e l y that randomly selected f i l e s would c l a r i f y the differences. To analyse h i s strata, Hindus c o d i f i e d h i s cases according to three broad categories: t o r t , contract, and property. Like Lord Denning, he was d o u b t f u l t h a t there can be much of g e n e r a l in t e r e s t i n most common and general categories of t o r t (ones l i k e Rankin's case c i t e d above) and of contract (the mortgage case cited). He rated trustee, deceit, l i b e l , workmen's compensation, and conversion of property (the log-loader case c i t e d above) higher. A more important difference between the Massachusetts s i t u a t i o n and ours i s that the B.C. Supreme Court records cannot be divided conveniently into contrasting counties (one urban, one regional). The records are not organized that way. Although i n B.C. the judges on c i r c u i t c e r t a i n l y do hear Supreme Court cases i n each j u d i c i a l d i s t r i c t at the assizes, and although county court judges act as l o c a l j u s t i c e s of the Supreme Court i n s p e c i f i e d matters (see Chapter II), the papers of those t r i a l s w i l l be f i l e d i n the o r i g i n a t i n g county court r e g i s t r i e s . The B r i t i s h Columbia Supreme Court system i s a centralized one. In f a c t a l l the major c i v i l cases, with the exception of mining, regardless of t h e i r geographic o r i g i n s i n the province, were t r i e d e i t h e r i n Vancouver or V i c t o r i a (see 91 Chapter II). The old court record-keepers regarded the cause book as the most valuable record. Indeed Lord Denning set down the "green books", the high court cause books, for permanent preservation. Every document and happening, every process (except searches and subpoenas) are recorded there i n b r i e f by the clerks. The Hindus Committee, however, regarded these books of l i t t l e value, because the entries "give no true sense of the case." 7 Granted a narrative cannot be fashioned from the entries as i s possible with a case f i l e , they nevertheless are valuable to those whose investigations require data from a very large numbers of cases. I t i s the cause book that gives researchers an idea of the type of actions f i l e d i n the Supreme Court r e g i s t r y ; they show how the type of action varies from period to period. Searchers w i l l be able to monitor the progress of the a c t i o n , f i n d at what stage the case was abandoned, or, when s u i t s come to t r i a l , observe the outcome. The entries w i l l surely show i n t e r a l i a that large companies can pursue a case that many other persons cannot. From these, researchers may assemble data f o r i d e n t i f y i n g p l a i n t i f f s who t y p i c a l l y give up a s u i t , those who simply do not have the money or the nerve to keep going i n a grievance against a powerful defendant l i k e a h o s p i t a l board or an insurance company. On the other hand, the data may i d e n t i f y that rare person who i s an "habitual" l i t i g a n t . Using j u s t the case f i l e s , Hindus had hoped to c o l l a t e h i s 92 sampled or selected f i l e s from a l l the sections into subgroups such as "women", "technology", "public corporations", and "business". But he found that h i s technique d i d not produce numbers large enough to be of any use to quantifiers. For subgrouping he could have used the cause books. Entries l i k e "Jones v. B.C. Hydro - damages to fence", f o r instance, would go into the "public corporations" subgroup. J.A. Sharpe f e l t he needed four pieces of information to complete h i s quantifying of criminal cases: the indictment, presentment, recognizance, and deposition. 8 The elements i n a c i v i l action f o r a s i m i l a r study are accordingly the s t y l e of cause, the statement of claim, the statement of defence, and the outcome, or judgment — a l l stages noted i n the cause books. These record books are c e r t a i n l y large and cumbersome, so i t i s understandable that i n many j u r i s d i c t i o n s record administrators have set them down for disposal. However, i f the pages are l e g i b l e and i n reasonable condition they are ju s t the sort of records most suitable for filming, because they have been kept i n r e g i s t e r s or record volumes i n numerical or chronological sequence. As f o r case f i l e s , c e r t a i n l y the most valuable are i n the divorce section. According to Lord Denning, who discounted other s e r i e s of case f i l e s : "We consider i t desirable that a s u f f i c i e n t p e r i o d i c sample of complete case f i l e s i n matrimonial actions be preserved to provide adequate material f o r s o c i a l and s i m i l a r research." 9 The Hindus Committee agrees and would keep a l l divorce c a s e s . 1 0 93 In B r i t i s h Columbia the divorce numbers between 1900 and 1945 w i l l not be great; i t may be p o s s i b l e t h a t a l l of them could be retained to preserve the i n t e g r i t y of the series. Certainly very large samples from 1945 up to 1968 should be kept. The bulk of material w i l l f a l l between 1968 (when the grounds f o r divorce were broadened) and 1986. For that period the f i l e s may be s e l e c t e d on the same b a s i s as other c i v i l cases. Divorce f i l e s should not be extensive a f t e r 1986, since the 1986 "no-fault" Divorce Act w i l l presumably r e s u l t i n decrees being granted i n uncontested divorces v i r t u a l l y by request. I t was the adversarial element i n divorce that accounted f o r much of the documentation. Bankruptcy, Probate and Divorce f i l e s have been discussed. For s e l e c t i n g the ordinary c i v i l cases we should modify the Hindus technique. F i r s t , l e t us have a team take two three-year spans: 1948-1951 and 1958-1961 1 1 and go through every f i l e saving some in t a c t , discarding the "non-starters", and st r i p p i n g others (whether discontinued or decided) f o r statement of claim, statement of defence, examination for discovery, substantive a f f i d a v i t s , counter-claim, and judgment. Save as many of these documents as are i n the f i l e , the most usable being the statement of claim, the discovery materials, and the judgment. When once the team has a perspective on the series, the members can come t o a d e c i s i o n on the d i s p o s i t i o n of the very long and technical corporation/industrial cases. For the res t of the bulk, take a s t r a t i f i e d sample every f i v e years and random 94 samples from the universe of records using registry numbers that are computer generated. The randomly selected f i l e s should then be kept intact, even i f they are technical cases. This method should result in a balanced archive, redressing the p i t f a l l s of conscious selections. NOTES FOR CHAPTER V •"•Report of the Committee on Legal Records (Denning Report) (London: HMSO, 1966. Cmd. 3084) 2Report of the Committee on Departmental Records (Grigg Report) (London: HMSO, 1954. Cmd. 9163), p. 94. 3Denning, p. 19. 4See A l f r e d Watts, History of the Lav Society, p. 49 f f . 5 F e l i x Hull, "The Appraisal of Documents: Problems and P i t f a l l s " . Society of A r c h i v i s t s , ( A p r i l 1980), p. 289. 6Hindus, M.S., T.M. Hammett and B.M. Hobson. The F i l e s of the Massachusetts Supreme Court, 1859-1959: An Analysis and Plan f o r Action. (Boston: G.K. H a l l & Co., 1979). 7Hindus, p. 37. 8Sharp, pp. 9-12. 9Report of the Committee on Legal Records (1966), p. 27. 1 0 H i n d u s , p. 83. i : LFor a choice of years see Chapter I I . 96 CHAPTER VI Conclusion We have been l o o k i n g p r i m a r i l y at the p e r i o d 1858 to I960, a period of r e l a t i v e s t a b i l i t y . From then on society became more unsettled. Thus the Task Force on Corrections Service, February 28, 1973, reported that c r i m i n a l offences i n B r i t i s h Columbia had doubled between 1962 and 1970.1 The records of actions increase i n the c i v i l r e g i s t r i e s proportionately. As the L a t i n proverb says, l i s l i t e n s generat, s t r i f e begets s t r i f e . The Supreme Court of B r i t i s h Columbia Act of 1960 altered the proceedings f o r divorce hearings, and i n 1968, the new federal divorce act brought a flood of divorce s u i t s to the Supreme Court. As a r e s u l t the number of divorces granted by the Supreme Court trebled between 1959 and 1969, that i s , from 1420 decrees to 4229.2 Judeo-Christian ethics had been unquestioned by the pioneering generations. The men on the bench of the Supreme Court of B r i t i s h Columbia from 1858 to 1960 were without exception Christian. And the j u s t i c e s (predominantly Anglican or Roman Catholic, r a r e l y Presbyterian or United Church) were active Christians, holding o f f i c e i n t h e i r l o c a l churches, teaching Sunday school, or working with boys clubs. The value system seemed as secure to the administrators of the 1950s as i t had to James Douglas, who, with f u l l confidence i n 1859, had printed on the claims forms for miners going out into the lonely 97 h i l l s : I t i s enjoined that a l l persons i n the gold f i e l d s maintain a due and proper observance of Sundays. The divorce lawyer N e i l Fleishman speaking of h i s attorney father said: For my father, the basic r e q u i s i t e f o r the profession was a thorough grounding i n the t o t a l c u l t u r e of our Western World and i n what he saw as the cornerstone of that culture, the Bible. I remember as a teen- ager i n the t e r r i b l e t h i r t i e s being taken to hear the great evangelical preachers, one every Sunday, without f a i l . The word of God was the word of Law, he f e l t . 4 Writing i n 1973, he added: In the l a s t 5 years the question of m i n i s t e r s of the gospel never came up i n court - 25 years ago? i t was commonplace fo r couples to mention having seen t h e i r pastor or t h e i r p r i e s t . Nowadays, even p r a c t i c i n g R.C.'s simply do not mention having discussed these matters with t h e i r p r i e s t . Does r i s i n g l i t i g a t i o n i n the c i v i l d i v i s i o n point to d i v i s i o n s i n society? On the whole, c i v i l records have been neglected by scholars, who wrongly f e l t that c r i m i n a l cases are more important. David Kelley writes: No category of human a c t i o n has been s t u d i e d i n as much depth, or from as many angles as crime. So we can understand why criminal records have been considered by a r c h i v i s t s l i k e Michael Hindus to be more valuable than c i v i l ones. Yet Kelley maintains that a l l t h i s intensive study has 98 e l i c i t e d only three undisputed facts : that young men are disproportionately responsible f o r crimes of violence and property, that criminals exhibit a disrespect f o r authority, and that they have a diminished capacity f o r empathy.7 Can we not conclude t h a t c i v i l cases g i v e a b e t t e r p r o f i l e of society than do cr i m i n a l ones? Certainly i n B r i t i s h Columbia the crimes that have come before the higher courts are o f t e n more a study f o r psychology than f o r e i t h e r law or history. From 1858 to 1958 the facts of murder and sexual abuse 8 are p a i n f u l l y s i m i l a r , more a l i k e indeed than the circumstances of divorce, the values of personal property, and rel a t i o n s h i p s between employer and employee. C i v i l law i s the branch of law that most commonly a f f e c t s most people. I f c r i m i n a l records document hi s t o r y from below, c i v i l ones document the hi s t o r y of community because a l l segments of society, a l l ethnic groups, both men and women, write w i l l s , and a l l s o c i a l classes p e t i t i o n for divorce, seek guardianship, f i l e f o r bankruptcy, and begin an action f o r private wrongs. Only c i v i l records can provide researchers with the evidence. Despite the l o g i c of t h i s view, the ordinary c i v i l causes are not noticed by the media. The j o u r n a l i s t s , l i k e the chroniclers of old, r e l a t e l o c a l sensations: a doctor's negligence t r i a l or the l i b e l l i n g of a c e l e b r i t y . They neglect the commonplace, which i s the r e a l i t y of history. Criminal records may show the connection between t h e f t and economic conditions, arson and protest, assault and s o c i a l i n s t a b i l i t y . But c i v i l records are better indicators of 99 economic conditions, s o c i a l s t a b i l i t y , and public sentiment than c r i m i n a l records. Thus J.A. Sharpe c i t e s r i s i n g l i t i g a t i o n i n English courts of the early seventeenth-century as an i n d i c a t i o n of "the generally h o s t i l e human rel a t i o n s h i p s of the period." 9 At the end of the century, a more s e t t l e d period, those wronged, he said, preferred a public apology rather than a court action and pecuniary damages. R.C. Risk states that i n Ontario cases i n the mid- nineteenth century c i v i l courts were dramatically d i f f e r e n t from cases coming before judges a hundred years l a t e r . 1 0 So, too, researchers w i l l f i n d that i n B r i t i s h Columbia t y p i c a l cases i n the early days had to do with land conveyancing, mining licenses, timber licenses, leasing and r i g h t s of way, railway settlements, enforcing contracts, c o l l e c t i n g debts. At the turn of the century, as l e g i s l a t o r s passed the laws necessary f o r i n d u s t r i a l i z a t i o n and the development of the regions, cases a r i s i n g out of incorporation, insurance, financing, performance, r i g h t s of way f o r the telegraph and f o r ever more railway companies came to the fore. T h i s p e r i o d gave way to one of s o c i a l l e g i s l a t i o n , laws regulating standards i n industry, employer-employee contracts and public health. Government intervention grew; persons disputing expropriation and marketing-board regulations took t h e i r cases to court. During the 1930s, the building industry f a l t e r e d , timber markets collapsed, salmon canneries f a i l e d , and personal and company bankruptcies increased. After World War II divorces rose 100 sharply and have continued to r i s e . In recent times, the B.C. Supreme Court hears environmental issues and l i f e s t y l e questions; i t makes decisions on c o l l e c t i v e r i g h t s and corporate l i a b i l i t i e s . What would one of our nineteenth-century j u s t i c e s have thought of a man's suing a tobacco company over hi s poor health? Probably he would have considered the s u i t o r a f o o l and h i s case fr i v o l o u s and vexatious. And so i t goes. S y b i l l e Bedford writes: The law, the working of the law, the d a i l y a p p l i c a t i o n of the law to people and situations, i s an e s s e n t i a l element i n a country's l i f e . I t runs through everything; i t i s part of the pattern l i k e the a r c h i t e c t u r e . 1 1 Here i s a complementary thought from Risk: Our understanding of history cannot be complete without some understanding of i t s l e g a l elements. The study of l e g a l history requires knowledge of l e g a l doctrines, structure, and procedure. 1 2 The raw materials exist. • Such primary sources as court documents and the published law reports can be studied over time because common law records were customarily kept f o r very long periods. The reasons were administrative: to ensure the law's consistency by reference to precedent; to document the status i n partnership, adoption, divorce, insolvency, and inheritance; and to ensure that orders of the court i n the paying of damages, maintenance, or fin e s were ca r r i e d through. The scholar i s fortunate i n having, at hand, case f i l e s , probate r o l l s , bench books and cause books preserved from the B.C. Supreme Court r e g i s t r i e s through which he can discover the legal elements and p e r s o n a l i t i e s and discern the patterns of the past. NOTES FOR CHAPTER VT Perry M i l l a r and Carl Baar, J u d i c i a l Administration i n Canada (Kingston and Montreal: McGill-Queen's University Press, 1981), p. 78. 2 S t a t i s t i c s Canada Information. 31858 Papers Relating to B r i t i s h Columbia: 19. 4Fleishman, N e i l , Counsel for the Damned (Vancouver: S.J. Douglas, 1983), p. 30. 5 I b i d . p. 157. 6 K e l l e y , David, "Stalking the Criminal Mind", Harpers (August 1985), p. 55. 7 I b i d . 8See R v Iman Din, XV BCR pp. 476-491 (1910). ^J.A. Sharpe, "Such Disputes Betwixt Neighbours" i n Disputes and Settlements, ed. John Bossy (Cambridge: Cambridge University Press, 1983), p. 170. 1 0R.C. Risk, "Mid-Nineteenth Century Ontario", p. 92. 1 1 S y b i l l e Bedford, The Faces of Jus t i c e (London: C o l l i n s , 1961), p. 83. 12R.C. Risk, "A Prospectus of Canadian Legal History", Dalhousie Law Journal (1973):228. 102 BIBLIOGRAPHY 1. Interviews Akrigg, C e c i l . Chief Clerk of the Supreme and County Courts, Vancouver. 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"Diary of Arthur Thomas Bushby". B r i t i s h Columbia H i s t o r i c a l Quarterly. 21 (1957- 58):83-198. Solomon, R.L. "Legal History and the Role of Court Records". The American A r c h i v i s t s . 43 (1979). Stevens, E. C i v i l and Court Procedure. London: Butterworth, 1981. Stroud's J u d i c i a l Dictionary. London: Sweet & Maxwell, 1974. Taylor, G.W. Builders of B r i t i s h Columbia: An In d u s t r i a l History. V i c t o r i a : Morriss Publishing, 1982. Walter, Hugh H. "Destruction Schedules: Quarter Sessions, Magistrates Courts and Coroners' Records". Journal of the Society of A r c h i v i s t s . 3 (1965). Watts, Alfred. History of the Law Society of B r i t i s h Columbia, 1869-1973. West Vancouver: A. Watts, 1973. Wexler, S.M. Materials on Legal Ins t i t u t i o n s. Vancouver: U.B.C. Faculty of Law, 1975. 109 Williams, David R. Duff: A L i f e i n the Law. Vancouver: U.B.C. Press, 1984. Williams, David. ". . . The Man For a New Country". Sidney: Grays Publishing Ltd., 1977. Wynne, Derek and Timothy F. Hartnage. "Race and Plea Negotiations: An Analysis of Some Canadian Data". The Canadian J o u r n a l of Sociology. (1975/76):147-154. 110 APPENDICES I l l APPENDIX A CHIEF JUSTICES OF BRITISH COLUMBIA NAME FROM TO S i r Matthew B a i l l i e Begbie Theodore Davie Angus John McColl March 29, 1870 June 11, 1894 February 23, 1895 March 7, 1898 August 23, 1898 January 16, 1902 Gordon Hunter March 4, 1902 March 15, 1929 (Also Chief J u s t i c e of the Supreme Court of B r i t i s h Columbia throughout h i s incumbency.) James Alexander Macdonald March 16, 1929 A p r i l 1, 1937 (Also Chief J u s t i c e of Appeal from November 30, 1909 to March 15, 1929) . Archer Martin Malcolm Archibald MacDonald David Alexander McDonald Gordon McGregor Sloan A p r i l 2, 1937 May 15, 1940 January 5, 1942 October 3, 1944 Alexander Campbell DesBrisay May 12, 1958 Sherwood Lett Henry Irvine Bird Herbert William Davey John Lauchlan F a r r i s Nathaniel Theodore Nemetz August 1, 1963 August 20, 1964 May 12, 1967 February 8, 1973 January 1, 197 9 May 6, 194 0 October 13, 1941 A p r i l 10, 1944 December 31, 1957 June 27, 1963 July 24, 1964 January 8, 1967 September 30, 1972 December 31, 1978 112 THE COURT OF APPEAL FOR THE PROVINCE OF BRITISH COLUMBIA JUSTICES OF APPEAL NAME FROM TO Paulus Aemilius Irving Archer Martin Chief Justice of B r i t i s h Columbia William A l f r e d G a l l i h e r Albert Edward McPhillips David MacEwan Eberts Malcolm Archibald MacDonald Chief Justice of B r i t i s h Columbia William Garland McQuarrie Gordon McGregor Sloan Chief Justice of B r i t i s h Columbia Cornelius Hawkins O'Halloran David Alexander McDonald Chief Justice of B r i t i s h Columbia Alexander Ingram Fisher Harold Bruce Robertson Sidney Alexander Smith Henry Irvine Bird Chief Justice of B r i t i s h Columbia Herbert William Davey Chief J u s t i c e of B r i t i s h Columbia November 3 0, 1909 November 30, 1909 A p r i l 2, 1937 November 30, 1909 September 20, 1913 May 1, 1917 May 27, 1924 May 15, 1940 September 6, 1933 A p r i l 2, 1937 October 3, 1944 January 29, 1938 September 11, 194 0 January 5, 1942 January 13, 1942 July 5, 1943 March 18, 1944 October 3, 1944 August 2 0, 1964 September 1, 1954 May 12, 1967 A p r i l 9, 1916 A p r i l 1, 1937 May 6, 1940 May 1, 1933 January 24, 1938 May 20, 1924 May 14, 1940 October 13, 1941 May 30, 1943 October 2, 1944 December 31, 1957 September 9, 1963 January 4, 1942 A p r i l 10, 1944 December 10, 194 3 September 17, 1955 September 18, 1960 August 19, 1964 January 8, 1967 October 15, 1973 September 30, 1972 113 THE COURT OF APPEAL FOR THE PROVINCE OF BRITISH COLUMBIA JUSTICES OF APPEAL NAME FROM TO Herbert W i l l i a n Davey September 1, 1954 October 15, 1973 Chief J u s t i c e of B r i t i s h Columbia May 12, 1967 September 30, 1972 James Moses Coady September 1, 1955 March 1, 1961 Frederick Anderson Sheppard October 14, 1955 November 10, 1965 Thomas Grantham Norris January 16, 1961 September 13, 1968 Charles William Tysoe March 15, 1961 February 1, 1973 John Owen Wilson January 22, 1962 July 31, 1963 Chief J u s t i c e of the Supreme Court August 1, 1963 November 6, 1973 Norman William Whittaker August 1, 1963 November 6, 1973 Arthur Edward Lord October 18, 1963 December 31, 1967 Harry Joseph S u l l i v a n May 20, 1964 August 4, 1965 Ernest Bolton B u l l November 5, 1964 August 23, 1982 Hugh Alan MacLean November 23, 1964 September 15, 1978 Meredith Milner McFarlane September 1, 1965 A p r i l 27, 1983 Angelo Ernest Branca January 15, 1966 March 21, 1978 114 CHIEF JUSTICES OF THE SUPREME COURT OF BRITISH COLUMBIA NAME FROM TO Gordon Hunter March 4, 1902 March 15, 1929 (Also Chief J u s t i c e of B r i t i s h Columbia during his incumbency.) Aulay MacAulay Morrison Wendell Burpee F a r r i s Sherwood Lett John Owen Wilson Nathaniel Theodore Nemetz Allan McEachern A p r i l 9, 1929 May 6, 1942 September 1, 1955 August 1, 1963 November 7, 1973 January 1, 1979 February 27, 1942 June 17, 1955 July 31, 1963 November 6, 1973 December 31, 1978 115 THE SUPREME COURT OF BRITISH COLUMBIA PUISNE JUDGES NAME FROM TO S i r Henry Pering Pellew Crease John Hamilton Gray John Foster McCreight Alexander Rocke Robertson George Anthony Walkem Montague William Tyrwhitt- Drake Angus John McColl Chief J u s t i c e of B r i t i s h Columbia Paulus Aemilius Irving Archer Martin Chief J u s t i c e of B r i t i s h Columbia Lyman Poore Duff Aulay MacAulay Morrison Chief J u s t i c e of the Supreme Court William Henry Pope Clement Francis Brooke Gregory Denis Murphy William Alexander MacDonald Alexander Ingram Fisher Harold Bruce Robertson March 11, 1870 July 3, 1872 November 26, 1880 November 26, 1880 May 23, 1882 August 14, 1889 October 13, 1896 August 23, 1898 December 16, 1897 September 12, 1898 A p r i l 2, 1937 February 26, 1904 September 28, 1904 A p r i l 9, 1929 December 7, 1906 November 30, 1909 November 30, 1909 September 24, 1913 A p r i l 9, 1929 September 6, 1933 January 21, 1896 June 5, 1889 December 17, 1897 December 1, 1881 December 1, 1903 August 14, 1904 August 22, 1898 January 16, 1902 November 29, 1909 November 29, 1909 May 6, 1940 September 26, 1906 A p r i l 8, 1929 February 27, 1942 May 3, 1922 A p r i l 1, 1933 December 1, 1941 January 1, 1934 January 13, 1942 Ju l y 4, 1943 116 THE SUPREME COURT OF BRITISH COLUMBIA PUISNE JUDGES NAME FROM TO Frederick George Tanner Lucas December 3, 1934 September 24, 1935 Alexander Malcolm Manson November 27, 1935 February 28, 1961 Sidney Alexander Smith September 26, 1940 March 17, 1944 James Moses Coady January 5, 1942 August 31, 1955 Joseph Nealon E l l i s January 16, 1942 September 28, 1942 Henry Irvine B i r d Chief J u s t i c e of B r i t i s h Columbia January 15, 1942 August 20, 1964 October 2, 1944 January 8, 1967 Arthur Douglas MacFarlane July 5, 1943 March 1, 1961 John Owen Wilson Chief J u s t i c e of B r i t i s h Columbia March 18, 1944 August 1, 1963 January 21, 1962 November 6, 1973 Andrew M i l l e r Harper October 3, 1944 September 9, 1947 Herbert Spencer Wood September 15, 1947 January 1, 1957 Norman William Whittaker September 13, 1947 July 31, 1963 John Valentine Clyne July 10, 1950 December 31, 1957 Herbert William Davey Chief J u s t i c e of B r i t i s h Columbia March 5, 1953 May 12, 1967 August 31, 1954 September 30, 1972 Harold Walker Mclnnes September 1, 1954 August 11, 1966 Arthur Edward Lord October 8, 1955 October 17, 1963 Harry Joseph S u l l i v a n February 9, 1956 May 19, 1964 Thomas Wilfred Brown June 14, 1956 March 31, 1970 John Graham Ruttan June 14, 1956 Narch 31, 1970 117 THE SUPREME COURT OF BRITISH COLUMBIA PUISNE JUDGES NAME FROM TO Hugh Alan MacLean Franklin Kay C o l l i n s Thomas Grantham Norris David Robertson Verchere James Gordon Armstrong Hutcheson Robert Alexander Burnie Wootton Frederick Craig Munroe John Somerset Aikens Vic t o r Leonard Dryer Nathaniel Theodore Nemetz Chief J u s t i c e of the Supreme Court Chief J u s t i c e of B r i t i s h Columbia Angelo Ernest Branca February 1, 1957 January 28, 1958 July 21, 1959 July 9, 1959 January 16, 1961 March 1, 1961 March 1, 1961 February 1, 1962 August 1, 1963 October 18, 1963 November 7, 1973 January 1, 1979 October 18, 1963 November 22, 1964 December 31, 1966 January 15, 1961 March 3, 1981 Seotenber 14m 1965 March 1, 1976 March 29, 1983 May 31, 1978 December 25, 1983 February 15, 1968 December 31, 1978 December 21, 1978 January 14, 1966 118 APPENDIX B RECORDS RETENTION AND DISPOSAL SCHEDULE: 78/01 COURT JURISDICTION: Appeal Court SUBJECT GROUP SUBJECT DESCRIPTION RETENTION PERIOD AND REMARKS A D M Micro Total Remarks Ret. Years BOOKS Index and Record Books 7 33 No 40 Sel. Ret. By Arch. Appeal Books and Factums 7 33 Yes 40 Sel. Ret. By Arch. APPEALS Judgements, orders, decrees, and reasons therefor. General 3 Yes 30 Correspondence, vouchers, receipts, cancelled cheques, etc. Court Recorders Log Books and tapes of court proceedings Judge's Bench Personal property of Judge 10 No No No 40 Sel. Ret. By Arch. or 2 yrs. since last gov't audit or 2 yrs. i f trans- cribed 10 transfer with per- mission of Judge. - transfer to Arch. 119 RECORDS RETENTION AND DISPOSAL SCHEDULE: 78/01 COURT JURISDICTION: Supreme and County Court SUBJECT GROUP SUBJECT DESCRIPTION RETENTION PERIOD AND REMARKS CIVIL Writs, summons, petitions, other originating & subsequent materials Judgments, orders, decrees, reasons therefor, and trans- cripts Other writs, orders, decrees, and reasons therefor. M Micro Ret. Total Years Remarks Includes exhibits, correspondence (other than partnership, probate, adoptions, bankruptcy, or lunacy) where action, cause concluded or terminated by dismissal, discontinuance, court order, and no appeal pending, ex- cluding judg- . ments, orders, decrees, reasons therefor and transcripts No 10 Yes 30 40 Sel. Ret. By Prov. Archives Where cause not concluded but no proceed- ings filed. No other steps (no judgment, etc.) Yes 30 40 Sel. Ret. By Arch. 120 RECORDS RETENTION AND DISPOSAL SCHEDULE: 78/01 COURT JURISDICTION: Supreme and County Court SUBJECT SUBJECT GROUP DESCRIPTION RETENTION PERIOD AND REMARKS A D M Micro Total Remarks Ret. Years Partnership, probate (other than wills), adoption, lunacy, and bankruptcy Wills (Probated) After Probate 7 3 Yes 30 1 9 Yes 30 40 40 Transfer Archives Transfer Archives General correspondence, receipts, cheques, etc. Bills of Sale - Chattel Mortgages Court Recorders Log books & tapes of court proceedings No 7 3 No No 10 or 2 yrs. since last gov't audit or 2 yr. transc. Judge's Bench Books Personal property of Judge 10 Archive Sel. rep. CRIMINAL Proceedings in a l l criminal matters, including charges, irKiictments, warrants, summons, etc. Where no appeal 7 pending, no bench warrant outstand- ing, no stay of proceedings entered, no pro- bation order out- standing and excludes judgments, orders, reasons therefor, decrees, etc. No 10 121 RECORDS RETENTION AND DISPOSAL SCHEDULE: 78/01 COURT JURISDICTION: Supreme and County Court SUBJECT SUBJECT DESCRIPTION RETENTION PERIOD AND REMARKS GROUP A D M Micro Total Remarks Ret. Years Judgments, 7 3 Yes 30 40 Sel. Ret. orders, reasons therefor, decrees record books, transcripts and certificates of conviction, N.B. (inform- ation and indictments on which final disposition is recorded, considered same as a conviction order) General Corres- pondence Returns of fines, jury list s , requisitions, calendars, vouchers, receipts, cancelled cheques, cheque stubs No or 2 yrs. since last gov't audit Court Recorders Judge's Bench Log books & tapes of court proceedings Personal property of Judge No 10 10 or 2 yrs. i f trans- cribed Archives Se. Ret. with pen- sion of judge 122 APPENDIX C SELECTED SERIES FROM THE BULK LISTING SHEET, VANCOUVER, CRC, 1984 Temporary Type of File Year Sequence Record Centre Box No. Box No. 1-7 1 Supreme Court Judge Record Books 1-13 Supreme Court Chamber Lists 1965-74 14-23 Supreme Court Chamber Lists 1974-78 1-6 Supreme Court Record Books 1951-67 1-3 Supreme Court Divorce Record Books 1954-63 4-5 Supreme Court Divorce Record Books 1964-67 1-18 Supreme Court Judgments Divorce 1969-75 1-6 Partnership Books 7-8 Partnership Books 1 Divorce Clearance 1-25 Supreme Court Chamber Lists 1920-63 1-9 Supreme Court Judge's Record Books 1-8 Supreme Court Judge's Record Books 1964 581 Supreme Court Judge's Record Books 1961 582 Supreme Court Judge's Record Books 1961 (oversize) 591 Supreme Court Judge's Record Books 1966 (oversize) 645 646 647 Railway Men's Acts & Oaths 1916-41 1942-55 Railway Men's Acts & Miscellaneous 1953-69 Supreme Court Act Oversize 1958 Pallet Storage Pallet Storage Pallet Storage Pallet Storage Pallet Storage Pallet Storage Microfilm Vol. 1-18 P.A.B.C. Vol. 19-24 P. A.B.C. 04691-08201 06.06.00.1 Pallet Storage Pallet Storage 1-28 1-346 01.02.00.1 - 01.04.00.2 2811(Pt.l) 04.12.07.6 2811(Pt.2) 04.12.08.1 3201 01-62 375-713 641-1062 911 04.12.09.4 04.19.08.4 04.19.08.5 04.19.08.6 123 SELECTED SERIES FROM THE BULK LISTING SHEET, VANCOUVER, CRC, 1984 Temporary Type of File Year Sequence Record Centre Box No. Box No. 652 Supreme Court Act 1920- 1920- -63 -29 Misc. Assessment Appeals Creditors' Relief Act 04.19.09.5 04.19.09.6 653 Supreme Court Act 1927--56 Supreme and County Court 04.19.09.6 694 Supreme & County Court Creditors' Relief Act 1957--60 04.19.10.1 694 Supreme & County Court Creditors' Relief Act 1962 1968 1-4 1-2 04.19.10.1 04.19.10.1 695 Supreme Court Oversize 1961--62 1056-2530 04.19.10.2 696 Divorce 1968 1-25 04.19.10.3 717 Divorce 1968 740-769 04.20.03.6 720 Divorce 1968 840-869 04.20.04.3 721 Divorce & Matrimony 5936 1968 00001-00030 04.20.04.4 722 Divorce & Matrimony 5936 1968 00031-00060 04.20.04.5 732 Divorce & Matrimony 5936 1968 00287-00316 04.20.06.3 742 Divorce & Matrimony 5936 1968 00567-00590 04.20.08.1 752 Divorce & Matrimony 5936 1968 00870-00904 04.20.09.5 762 Divorce & Matrimony 5936 1968 01171-01206 04.21.01.3 772 Divorce & Matrimony 5936 1968 01448-01480 04.21.02.6 775 Official Receiver 1923 1-13 Pallet Storage 775 Official Receiver 1924 1-30 Pallet Storage 124 SELECTED SERIES FROM THE BULK LISTING SHEET, VANCOUVER, CRC, 1984 Temporary Type of File Year Sequence Record Centre Box No. Box No. 775 Official Receiver 1925 1-53 Pallet Storage 775 Official Receiver 1926 1-46 Pallet Storage 776 Official Receiver 1927 1-52 Pallet Storage 777 Official Receiver to 1943 Pallet Storage 779 Official Receiver 1944-46 Pallet Storage 780 to 798 Bankruptcy 1920-31 Pallet Storage 799 Bankruptcy 1931 Pallet Storage 800 Bankruptcy 1931 21-50 Pallet Storage 801 Bankruptcy 1932 1-29 Pallet Storage 802 Bankruptcy 1932 30-51 : l l e t Storage 803 Bankruptcy 1932 52-70 Collet Storage 804 Bankruptcy 1932 68 only Pallet Storage sos--817 Bankruptcy 1933-48 Pallet Storage sis Bankruptcy 1948 6-22 Pallet Storage 819 to 828 Bankruptcy 1948-56 23-41 Pallet Storage 829 Official Receiver 1946,1948 77-11,1-30 Pallet Storage 830--837 Official Receiver to 1959 Pallet Storage 838-•839 M.P.R. Act 1942-48 Pallet Storage 840--848 Trustee files of W.A. Schramm 1963-67 Pallet Storage 849--850 Trustee files of W.A. Schramm, Misc. Check-books 1963-67 Pallet Storage 125 SELECTED SERIES FROM THE BULK LISTING SHEET, VANCOUVER, CRC, 1984 Temporary Box No. Type of File Year Sequence Record Centre Box No. 849-850 Trustee files of 1963-67 W.A. Schramm, Misc. Correspondence 851 Trustee files of 1963 W.A. Schramm, Misc. Correspondence 852 Trustee files of W.A. Schramm, Misc. Correspondence and to Corporate Seals 853 Trustee files of W.A. Schramm, Misc. Files and Correspondence 854 Trustee files of W.A. Schramm, Misc. Bankrupt Files 855-875 Trustee files of W.A. Sdhramm, Bankrupt Files 876-881 Trustee files of W.A. Schramm, Bankrupt Files 882 Notice of Motion Chandlers Files 1976-77 and Partnership Act Files 885 Supreme Court 1954 Extradition 1960-61 Act Files & Partnership Act H-17 Supreme Court 1941 H-34 Record Book Justice Bird H-35 Record Book Justice Manson H-36 Record Book Justice Bird 103/63 103/63 Deposit Date 1985 Pallet Storage Pallet Storage Pallet Storage Pallet Storage Pallet Storage Pallet Storage Pallet Storage Pallet Storage Pallet Storage 13.06.10.6 13.07.01.7 13.08.01.1 13.07.02.8 126 SELECTED SERIES FROM THE BULK LISTING SHEET, VANCOUVER, CRC, 1984 Temporary Box No. Type of File Year Sequence Record Centre Box No. H-37 Record Book Justice Bird H-37 Record Book Justice Sergent 3 Chamber Books H-38 Record Book Justice Sergent 2 Chamber Books H-42 Record Book DesBrisay C.J. H-43 Record Book J. Hutchens H-44 Record Book Lett C.J. H-45 Record Book Lett C.J. H-46 Record Book Lett C.J. H-47 Record Book Whittaker H-49 Record Book Manson H-50 Record Book Sullivan One Chamber; One Divorce H-52 Record Book Hunter C.J. Bench Book H-53 Record Book MacLean Volume 1-6 H-58 Record Book Brown Volume 10, 19-22 H-60 Record Book Whittaker H-61 Record Book Collins H-63 Record Book Lett C.J. H-67 Record Book Coady H-67 Record Book Coady Volume 1 of Chamber Book 1912-21 13.07.03.7 13.07.03.1 13.07.03.2 13.07.03.6 13.07.03.7 13.07.04.8 13.07.04.8 13.07.04.2 13.07.04.3 13.07.04.4 13.07.04.5 13.07.04.7 13.07.04.8 13.07.05.5 13.07.05.7 13.07.05.8 13.07.06.3 13.07.06.7 13.07.06.8 127 SELECTED SERIES FROM THE BULK LISTING SHEET, VANCOUVER, CRC, 1984 Temporary Type of File Year Sequence Record Centre Box No. Box No. H-68 Record Book Smith 13.07.07.1 H-69 Record Book Lord 13.07.07.2 H-70 Record Book Lord Chamber Book 13.07.07.3 H-71,72 Record Book E l l i s , Fake, Shultz 13.07.07.4 H-74 Record Book MacDonald 13.08.01.4 H-75 Record Book Hunter 13.08.01.5 H-78 Record Book Nemitz C.J. Chamber Book 13.07.07.7 H-79 Record Book Nemitz C.J. Chamber Book 13.07.08.1 H-80 to 84 Record Book Gregory 13.07.08.2 H-85 Record Book Gregory Volume 26-27 13.07.08.7 Chamber Book H-86 Record Book Gregory 13.07.09.1 H-90 Record Book Innes 13.08.01.9 H-92 Record Book Clement 13.07.09.5 H-93 Record Book Collins Chamber Book 13.07.09.6 H-94 Record Book MacDonald 13.07.09.7 H-95 Record Book Sebenisky 13.07.09.8 H-96 Bench Books Smith 13.07.10.1 H-97 Bench Books Hunter 13.07.10.2 H-99-104 Bench Books Wilson C.J. 13.07.10.4 H-105-108 Bench Books Wilson C.J. Civil Chambers Book 13.08.02.2 H-109 Bench Books Wilson C.J. and Lord C.J. 13.08.02.6 128 SELECTED SERIES FROM THE BULK LISTING SHEET, VANCOUVER, CRC, 1984 Temporary Type of File Year Sequence Record Centre Box No. Box No. H-114 Bench Books Mclntyre 13.08.03.4 H-119 Bench Books White, Green 13.08.04.1 H-121 Bench Books Manson, Volume 1-8 13.08.04.3 H-122 Bench Books Norris, Admiralty & Chambers 13.08.04.4 H-123 Bench Books Morrison 13.08.04.5 H-124 Files Wilson 13.08.04.6 H-125 Bench Books Howay, Grant 13.08.04.7 H-127 13.08.01.8 H-128 Supreme Court 1946-53 2876,2418 13.08.05.1 H-129 Supreme Court 13.08.05.2 H-135 Supreme Court 1959-60 13.08.05.7 1-1 Divorce 1946 deposit date 1979 10.07.03.2 1-2 Divorce 1950 10.07.03.3 1-3 Divorce 1952 10.07.03.4 1-4 Divorce 1955 10.07.03.5 1-5 Divorce 1956 10.07.03.6 1-6 Divorce 1956 10.07.03.1 1-7 Divorce 1956 10.07.04.2 1 Supreme Court Act 1965 18.8.3.7 6 Supreme Court Act 1965 18.8.4.5 23 Supreme Court Act 1965 18.8.7.4 129 SEIECTED SERIES FROM THE BULK LISTING SHEET, VANCOUVER, CRC, 1984 Temporary Type of File Year Sequence Record Centre Box No. Box No. 44 Supreme Court Act 1967 18.7.1.1 8 Supreme Court Act 1961 17.3.4.1 46 Supreme Court Act 1961 17.3.8.8 51 Supreme Court Act 1961 17.3.9.5 130 Supreme Court Act 1962 17.04.09.4 151 Supreme Court Act 1962 17.05.02.1 229 Supreme Court Act 1963 17.06.01.7 280 Supreme Court Act oversize 1963 17.06.08.2 1 Bench Books Justice Aikins 1962 01.04.08.1 6 Bench Books Justice Aikins 1970 01.04.08.6 F-141 Supreme Court 1959 05.11.01.2 F 158 Supreme Court 1959 05.11.04.1 E 66 Supreme Court 1955 08.22.01.6 1 Partnership 1926 17.6.8.8 12 Partnership 17.6.10.4 34 Mechanics Liens 1905-08 17.7.3.1 35 Mechanics Liens 1912 17.7.3.2 36 Mechanics Liens 1912 17.7.3.3 38 Mechanics Liens 1919-22 17.7.3.5 39 Mechanics Liens 1919-22 17.7.3.6 40-48 Mechanics Liens 17.7.3.6 to 13.7.4.7 APPENDIX D In the matter of "Perfect Ladies". Excerpts from the examination for discovery. The examination of Vila Papp, 2nd September, 1931. Mr. Sugarman asks Miss Papp about her salary. Q. $20 a week? A. No, a month. I did not get paid. I took a $250.00 chattel mortgage for my wages and gave $500.00 cash to the company as a loan. Q. Where did you get the money for the loan? A. I brought the money from the old country, from Budapest. I gave i t to Mr. Sabo as I got i t . Mrs. Sabo wouldn't l e t me work in the store anymore. I did the books at home. The chattel mortgage I sold to Mr. Sabo and got his property at Steelhead. Q. A farm? A. No, a forest, 40 acres Q. When did this happen? A. I don't remember Q. Just about the time a receiver was put into the business? A. No. It was before the receiver. Q. Ever any cash? A. Yes, this year after the fire. I got i t in April or March, $30.00. It was money from the old country, cash in envelopes, from people I had sold things to, furniture, etc. Q. How was it? English money? A. No, dollars Q. What money was taken in by the fire sale? A. I don't remember Q. Where did you get this; Auction sale, $2,318.75? A. From the Auction book. Q. A l l one sum? A. It would be too much to write in a l l of those. Q. Did you deposit any of that money in the bank account? A. I guess I did. Q. Where i s the record of the deposits in the bank account? A. We have not got them here. Q. The old book was in the place where the fire was? A. . . . books, shelves [were in the] fire Q. It was November 1929 when Mr. Nettle resigned or was fired? A. I don't know Q. Did you take the 1929 books out of the safe? A. . . . nothing to do with me Q. They are very important right now A. I don't know why Q. Mr. Nettle was Mrs. Sabo's friend and he was the bookkeeper in 1929 A. . . . [no answer] Q. And there i s not a record left of the business done in 1929 is there? A. . . . [no answer] Q. Will you get a copy [of your bank book] for me? A. I will but I haven't got i t Mr. Sugarman: Then we will excuse you until [this afternoon] The ccaTtinuation of examination of Vila Papp, 2nd September, 1931. Q. Now, deposit December 19, $1,500, who did you get that from? A. Mr. Sabo Q. Cheque, December 23, $503.70. You have that Mr. Sabo, I want i t for a moment - payable Royal Bank Q. And you got a mortgage for how much money? A. $750.00 Q. Why did Mr. Sabo give you $1,500? A. That and the $800 he just put into my account because of a quarrel with Mrs. Sabo. Mrs. Sabo fired her f i r s t husband twice - thought he w i l l lose everything. I came over on Mr. Sabo's responsibility here and i f he lost his store he cannot support me. Q. Why should he support you? A. Because I was working for him. Examination of Alexander Sabo, 2nd September, 1931 Q. How long have you been the only director? A. Since January 1930 Q. Do you have a l l your books? A. Except for cheques re. Mrs. Sabo's action Q. A l l the bank books? A. I have not turned over the bank book of the Royal Bank Q. What about the records of the business before 1930? A. Nothing Q. Is i t not the fact that you kept your books in the safe? 133 A. The new ones Q. As a matter of fact, this fire just took place on the table in the back of the workshop? A. Yes, the table was burned and same cases burned and damaged. Q. But i s i t not the fact that there were about fifteen dresses on the mezzanine floor? A. I don't know

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