MAKING LAW BY RULES OF COURT.

BY BRAM THOMPSON, M.A., BARRISTER-AT-LAW, REGINA.

The liability of a Personal Representative for the debts of a deceased, after administration and distribution of the Estate, is a subject which has received a new recrudescence in the Province of Saskatchewan, through the omission from, and repeal by, the Revised Statutes, 1920, of section 26 of the Trustee Act, 1903, of the N. W. Territories, which appeared as section 27 of chapter 46 of the Revised Statutes of Saskatchewan 1909. This section was with variations a re-enactment of the English Statute 22 & 23 Vic. cap. 35, section 29; and when it was enacted in the N. W. Territories in 1903 it superseded, and impliedly repealed, the prior English enactment which up till that time was in operation as part of the Law of England existing on the 15th of July, 1870, conferred upon the North-West Territories by the North-West Territories Act, 1880.

The only thing left to replace or to represent the repealed section 26 of the Trustee Act is Rule 43 of the Surrogate Court Rules, 1921.

The section of the English Act referred to was avowedly enacted in 1859 to remove a hardship on Personal Representatives. It was, however, a great deal more than a mere hardship-some mere mental burden, or some thwarting of a rightful purpose-that was removed; it was an obligation or liability of an exceedingly onerous character which frequently entailed enormous financial imposts on the Personal Representative that was abolished from the English Law. The obligation was this: that the Personal Representative was liable for the debts of the deceased up to the full extent of the assets, even after he had distributed the Estate; and this liability existed whether before distribution be had, or had not, notice of the debts, claimed to be paid after distribution. This somewhat anomalous and most unjust condition of the

Law was in its turn frequently used as a pretext for the non-distribution of a trust estate by the Personal Representative; and in this way its recoil fell upon the beneficiaries or next of kin, as the case might be, of the deceased.

A double redress was therefore rendered by the Statute 22 & 23 Vic. cap. 35, when section 29 of it enacted that upon a prescribed notice being inserted in a daily paper for a prescribed period, of the intention of the Personal Representative to distribute the Estate all creditors who failed to send in to him, in conformity with the notice, particulars of any debts or claims against the deceased, were precluded from suing or seeking any remedy against the Personal Representative after the date stipulated by the notice for the distribution. Compliance with this provision at once safeguarded the Personal Representative, and removed from him the semblance of any pretext, on that score, for delay in distributing. The Statute, with the particular section named, is still the Law of England; but in Saskatchewan it has been doubly repealed as I have stated; first by enacting a varying substitute for it in 1903 and 1909, and now by repealing by the Revised Statutes of 1920 that substituted provision.

This is written to draw Practitioners to a recognition of the fact that by the manipulation in our Statute Law which I have set forth, Personal Representatives, and especially Trust Companies who so generally undertake the Representative function, are now reclothed with the old obligation of being liable to creditors for debts of the deceased up to the full extent of the value of the assets, whether or not they have received notice of the debts, and whether or not they have distributed the estate.

It surely cannot, in this day of clearer conceptions of Law, be contended that the Rule of Court to which I have referred (Rule 43 of the Surrogate Court Rules 1921) affords any protection to the Personal Representative even if he has complied with its terms in every detail.

A Rule of Court, as I have frequently had to point out, cannot make substantive Law or create or alter a legal right which exists under either the Common Law or the Statute Law.

I discussed this question almost ad nauseam in the Alimony controversy some months ago, and particularly in reference to British Columbia which has assumed to create a legal right to alimony by a Rule of Court; and I discussed it at an earlier date-1918 or 1919 when I saw that in Saskatchewan the only Law there was for Infants and their Guardianship, etc., was contained in Rules of Court, and again I discussed it when I drew the Provincial Government's attention to the fact that the civil remedy by a Garnishee issued anterior to Judgment depended entirely upon a Rule of Court which was repugnant to the provisions of Magna Charta itself. Statutory enactments replacing or superseding these impotent Rules of Court quickly followed in 1918, 1919 and 1920.

Now we are reversing the sane order of rectification. We are repealing Statute Law and replacing it with Rules of Court! Comment is unnecessary.

To revert to the immediate question before us. The right of a creditor to be paid his debt is a Common Law right. It exists first against the debtor, next against the representatives of a deceased debtor up to the full extent of the assets; and it can be enforced against either at any time within the period prescribed by the Statute of Limitations. That is the only curtailment upon it in Saskatchewan Province, now that we have abolished the other conditional curtailment afforded by the repealed section 26 of The Trustee Act, 1903.

I have not examined the provisions of the other Provinces in regard to this matter; but I apprehend that none of them has done what has been done in Saskatchewan. Whether it has been done by an oversight or done deliberately, the consequence is the same to the Legal Personal Representative, and I suppose also the Next-of-kin or Beneficiaries.

Verbum sapientibus. This wrong should be promptly rectified; and when rectifying it, let the Legislators remember first to clothe, if they see their way to do so, the Surrogate Court with some authority over the administration of deceased and other Trust Estates. At present it has none. It is according to the Judgment of the Saskatchewan Court of Appeal in Re Hannon v. Rimmer, neither a Superior nor a District nor a County Court, but something infra the lowest of these. The lower it is the more necessity there is to prescribe its authority, for it has nothing inherent or inferential. The Rule of Court (43) upon which the Surrogate Court now hangs its jurisdiction and bases its practice belongs properly to the King's Bench practice; for the King's Bench has the jurisdiction of the English Chancery Court, or of the Chancery Division of the English Supreme Court; and it is in the Chancery Division that the administration of estates is conducted. The Rule (43) of the Surrogate Court is not competent to destroy or displace this jurisdiction. which is conferred upon the King's Bench Court by Statutory Enactment. It remains there notwithstanding the Rule; and any rule relating to administration or distribution should be a King's Bench Rule.

There are other matters, but pressure compels their postponement. BRAM THOMPSON.

November, 1921.

ULPIAN'S DEFINITION OF JURISPRUDENCE.

BY HENRY H. BROWN.

Forty-two years ago, in the Scots Law Classroom of the University of Edinburgh, I heard Professor MacPherson lecture on the Roman definition of Jurisprudence. The beauty of expression and nobility of principle in the definition, impressed me at the time, and I have since found opportunities of studying it and of endeavouring to extract its full signification.

Ulpian probably composed the definition. This is not certain, but the definition appears in Digest, i. 1, 10, as an extract from the first book of the Regulae of Ulpian. It is not mentioned in Gaius, but is the second sentence in Justinian's Institutes. We cannot fully understand it unless we read it as it occurs in the Latin text: "Justitia est constans et perpetua voluntas jus suum cuique tribuendi. Juris præcepta sunt haec; honeste vivere, alterum non laedere, suum cuique tribuere. Juris prudentia est divinarum atque humanarum rerum notitia, justi atque injusti scientia."

It is impossible to translate the definition perfectly into English, because the language does not contain single words which express the delicate shades of meaning of the three Latin words-prudentia, notitia, and scientia. Each of the words signifies "knowledge," but knowledge of a different sort. Prudentia (equivalent to providentia) means knowledge acquired by forethought and study, which teaches the best rules for the regulation of human conduct. Notitia means knowledge acquired by the exercise of our bodily powers. Scientia means knowledge acquired by the exercise of our mental powers.

We acquire notitia of things divine and human by observation and the exercise of our bodily powers. We acquire scientia of the just and the unjust by reflection and the exercise of our mental powers. By juris prudentia, which combines both notitia and scientia,