iw the kingston chronicle a nec rege nec populo sed ctroque 1w r yl x saturday july 26 1828 no in 4 jthe attorney generals opi nion in the case of judge willis 5 york june 17rn 1828 ir in obedience to the commands of his xcellency the lieutenant governor i ave considered the several questions re- rred to me by your letter of this day to inch as early an answer as possible is e quired and i have perused mr justice itus page transmitted with your letter d o a report of statements pu- licly made by him on the first day of the resent term which have given occasion o the reference made to me by his ex cellency the first question is whether in the ab sence of the chief justice of the court of kings bench from this province that court can bo legally holden our court of kings bench derives its existence from the provincial statute of j34 geo 3 ch 2nd by the first clause w that statute it is enacted that there be constituted and established and there is thereby constituted and established a court of law to be called and known by f the name and style of his majestys i court of kings bench for the province of upper canada which shall be a court of record of original jurisdiction and shall possess all such powers aud authori- ties as by the law of england are iuci- dent to a superior court of civil and criminal jurisdiction and may and shall hold plea in all and all manner of ac- tions causes or suits as well criminal 11 as civil real personal and mixed aris- 41 ing happening or being within the said province and may aud shall proceed in such actious causes or suits by such 11 process and course as shall tend with justice and despatch to determine the 11 same and may aud shall hear and de- 11 termine all issues of law and shall also hear and by and with an inquest ofgood and lawful men determine all issues of fact that may be joined in any such ac- tion cause or suit as aforesaid and judg- ment therein give and execution there- of award in as full aud ample a manner as can or may he done in his majestys court of kings bench common bench or in matters which regard the kings revenue by the court of exchequer in england and that his majestys chief justice in tins province together with two puis- justices shall preside in the said court which courtsbai be holden in a place certain that is in the city town or place where the governor or lieuten- ant governor shall usually reside and until such place be fixed the said court shall bo holden at the last place of meei- ing of the legislative council hnd as- sembly the three nxt succeeding clauses are proper to be considered they are in the following words and in order that certain stated times be fixed for the sitting of the court be it enacted by the authority aforesaid that attn fprw h up- 11 pointed in each year successively to no known by the names of hilary easter trinity and michaelmas term that the hilary do commence on the third monday in january and end on the sa- turday ofthe ensuing week that eas- ter term do commence on monday next after the sixteenth day of april and 11 end on the saturday ofthe ensuing week that the trinity term do commence n v ii i on the third monday in july and end on the saturday ofthe ensuing week and that the michaelmas term docora- nienceon the first monday in october aud end on the saturday next ensuing and that the first and last hays of every term and every alternate day from the first not iucludiug sunday be return days provided always and be it hereby fur- ther enacted that when the court shall have good reason to believe there will not be sufficient business to require their daily attendance throughout the term they may be at liberty to adjourn the court on any return day to the next nn- mediate return day and be itfurthtr enacted by the authori- tu aforesaid that all writs to he sued out of the said court shall issue in the kings name and be tested by me chief justice or in his absence by the senior judge of the court and he returnable on some re- turn day in term time and that not less than fifteen days inclusive shall always intcrvpue between the teste and return of the first process that shall be directed to the sheriff of the home district or the disdct in which the court shall be hold- cnand that not less than forty days m- elusive shall always intervene between the teste and return of the first process into every other district h the commissions to the judges who are appointed by patent issue to them in dividually and every commssion which i have seen authorises and commands he judge whom it appoints to hold the court of kings bench at such times and in such places as the said court may and ounht by law to be holden 1 1 advert to the terms of the commission ylnot under any impression that they can have an operation repugnant to the pro visions ofthe statute but because i think it material that the whole case should be fullv placed in view and because it the words of the statute are such as to leave it uncertain what the legislature may have meant which however i do not con ceive they are then the terms of the com missions which the king has uniformly is sued under the statute may i think very fairly be regarded as of some importance and especially if they are found to be indi rect accordance with that construction which may appear the most sensible this question having presented itself in cidentally in answering a reference made by the government to the solicitor gen eral and myself some months ago we gave an opinion upon it which i beg now to advert to as shewing the view taken by us of the proper construction of the statute of 34 geo 3 tt a time when no contrary opinion had been advanced it did not seem necessary ten t0 enter minutely in to the questiou because it arose indirectly and as all the judges in common with all the rest of mankind had invariably given that construction to the statute which wa adopted its correctness was rather assum ed than attempted to be proved i continue to be of the same opinion i think that the court of kings bench in this province continues to exist although the chief justice be dead orabsentfrom the province and that the remaining judges or judge of that court can legally sit in term and hold the court although the chief justice be not present and i submit tnese reasons for my opinion 1st although it is ao acknowledged maxim of law that a statute ought sometimes to have such construction as is contrary to the letter and although a thing which is within the tatter of the statute is not within the statute unless it bo within the intention ofthe makers f do not consider it necessary in this case to resort to these admitted rules for the construction of acts of parliament the legal operation of the words on which the question turns even considered without reference to the nature ofthe subject to which they are applied and without refer ence to any other part ofthe statute or to any subsequent statute is not in my opin ion at variance with the consr iction which they have invariably recet- i to preside is according to john son to be setover it is by other com pilers stated to mean the same thing as to superintend to manage a president is declined to be one placed with authori- over others one at the head ofoihers the word has no express reference to the actual presence of the object pra- sens and 4 psidens i take to ye very distinct in their signification as they arc in their derivation and the latin verb masideo is thus rendered to have the management care government or 11 charge of when therefore it is de clared that his majesty chief justice of this province together with iwo puisne justices shall preside in the said courv- looking at no other part ofthe act and setting aside every argument at inconvenien- ti that must attend any other construc tion i understand it to be meant that tiie court is to consist of three judges that over the officers ofthe court and o- ver the court generally there shall preside a chief justice and two puisne judges 1 look upon the statute as a warrant and in struction for the appointment of bo mauy and such judges not perhaps limiting the number 60 that moro can not be appointed that need not now be discussed but as providing for an establishment of judges to that extent an establishment like all o- thers subject to casualties and leaving it to be inferred from the remaining provi sions of the act or to be settled by prac tice or more naturally and obviously by the known principles which govern the proceedings of similar courts whether the presence of all or of a majority of the judg es thus appointed toprtside shall be ne cessary to the performance of any act of the court or whether one alone in the absence of others is not necessarily invest ed with the authority of the court there is a court of kings bench a court of record of original jurisdic tion always existing in the province al though its sittings are confined to certain terms- in this court or over this court for i consider the one preposition so used to have the same meaning as the other a chief justice and two puisne judes pre side that is usually preside it is not necessary in my opinion that in the ball in which they are to sit they must all be present no clause oi this or of any other statute enacts that in terms every ar gument of inconvenience and many argu ments exabsurdo would apply against suh a construction and there is accordingly as i shall presently shew clear enough evi dence to be found in more than one el our statutes that the legislating never intend ed it but that they certainly thought and meant otherwise the error as i con ceive it ofsucbftconstructcn arises irom the attaching to the word oourt no o- ther idea than that of a substantial visible court occupying its hall or apartment considering tie word as used solely w reference to the court being in actual ses sion but i conceive that a person judge of the court of kings bench may with perfect accuracy be said a judge inthe court of fing bench in tliis provmce while he is confined to his koomby nlnos or is absent tolm country on leave and as much so as if lie were on the bench in the discharge of his so a man is said to he in the in with is a and to be duty vy council who may never have he pri- sn in n r the council chamber or a l ordinary and legal phraseology warrant this construction with respect to boards and bodies of various kinds numerous in stances might be produced of such an ap- plicxtion of the term in legal proceedings a man is said to be in court when he has been served with the process ofthe court and is re garded as being m in court for the pur- poseof moving or being moved against not that he has necessarily been or that he must be within the walls of the court while it is sitting but he is in that court which is created by the acof parliament which is manifested by the commission to the judges and by their proceedings and which does not die and revive as of ten as any individual judge in it vacates his seat and another is appointed the court exists by commission independently of any building or hall in which it discharg es iu functions a president of a court or council is the person a- resides in such court or council 1 think the substantive is strictly reducible into the very words under consid eration the chief justice presidts in the executive council ex officio in the absence of the lieutenant governor but though he may be absent there is a coun cil and without the person appointed to preside in it- he presides nevertheless in the council in my understanding of the term at the very moment that from his ill ness or abseuce the senior member of the boad presides of necessity at any particu lar sitting- i submit that if any stranger should en ter uie court of kings bench during term time and ask a byestander who presided in that court he might consist ently with tiie just and common under standing of words be told that the chief justice ofthe province presided in it but that ne was not then present i conceive that a person may preside in a court witu- out presiding in every sessiou of that court te expression shall preside in the court is to be understood in the common acceptation of the words- it is not a legal or teehnt purasc which has a certain known meaning uecessurily attached to it audit isin itsmost ordinary sense that the legislature must bo supposed to have used rt if we give to expressions of si milar import such a construction as would make mem refer ouly to tiie actual siniug of thi court and to take them in that sense strictly we shall find tiiat the most respectable writers upon the constitution of toe courts in england misrepresent them as in this respect subject to restric tions aud conditions which they certainly are n subject to for instance a writer ou tfcs court of kings jieucu says the juuges of the king s beucn are cornpos- ed ittho lord chief justice ol lngund and three puisne j uoges all of whom sit in that part of westminster nail known by the namo of the iourt oi iviugs bench every dy in the four terms jvoh it is so notorious that alt the judg es do not sit every day in term the illness and absence of one or more oi liicln liequ- eutly pii la utf tuu have meant that they may sit that tney are appointed to sit or as our statute has it to presiue in tiie court 1 die this merely to siiew the sense in wolcu such language is used iir justice black- stone uncs precisely the same worn m describing the court oi common ileas if the words preside in the said court are not so frequently used iutne constituti on of courts as the expression that the court shall consist or he composed of e 1 shall be able i think to suew very satisfactorily that they were not used by the legislature in order to produce a ait- fereut cried aud in the wean time i will add that think their introduction is rati onally accounted tor by observing that the co nt consists oi other officers besides tiie judges the judges are ohiccrs of the court so are the sherins so are toe cerks so aro various utier persons at- tacucatu it these iatterh never do not presuu m the court uuges uo wnu me expression 1 understand to have been j applied to ue judges m oiut fceuse and without parucuiur relerence to their actual sittiug m term any more than to their act ing eitocr collectively or singly in vacati on i will not insist further upon the mean ing to be imputed to the words abstractedly though many otnerarguiueutsoa mat point occur to me because ifeel tat the question has been set at rest not merely by mo con curring practice oi all the judges who have presiueti in the court but by the declarou souse oi ine legislature and mdecu 1 have only said thusmuciiou tins point because 1 tluuk it satisfactory in a matter so im portant to shew tnat the construction inva- riaoiy given to the language oi tue catute is not repugnant to the idler but is strict ly consistent witu tueconimou unuerstuuu- ing and lair meaning of the words tiicni- selves uvjtakea more comprehensive view of wo question 1 think it dear mat tie words preside ui the court are capable ol uo other construction thuu i have given to the m when we consider the nutate of theoljcito uhkitiiieyaituppliednai w we look at olfter clauses oi tue same sta tute audatoiher statutes expressly ceuxtig to the court- the practice and proceedings and the poweis of the court aro ail similar to those kiig s wncb in and for the purposes expressly assigned to this court in the very clause in which the words dircur namely for the regular as well as the general administration of justice that it should never be certain whether there will be a court on any re turn day in term never b certain that an argument can be heard to the end or a cause tried even after it is begun i have known a few years ago atrial at bar in e- jectment for a large property in a remote district the special jury were necessari ly brought from that district the trial last ed from an early hour of one day to three oclock in the morning ofthe next if one of the judges overcome by the exertion had expired in a fit upon the bench and the effect of such a casualty had been to annihilate the court and so effectually as to prevent even the power of adjournment for that is now expressly affirmed then the jurors must have been allowed to walk out of their box and separate to their homes and the case must have ended in a general dispersion without authority of parties judges officers and all- again by law and the practice of the court a party complaining of an illegal verdict has the first four days of the fol lowing term in which to move he un luckily perhaps unavoidably defers it to the last a judge is ill on that day and can not attend in his place there is no ourt it is said and he cannot move for it is impos sible if a now commission were required whenever a judge is absent or ill tout it can always be completed and issued on the in- staut the next day his adversary eutero up his judgment before or after the hour for tiie meeting ofthe court and without in quiring whether the judge was well or ill or whether he would he or was absent or present on the bench- he does am act in the office ofthe court which is al ways in existence but m which by the way no business of any kind ought to be transacted if there is no longer a court aud indeed i am at a loss to under stand how the ordinary chamber business ofthe judges could be legally transacted nt a time when by the absence of the chief justice admitting the ahsenceto have that effect thero is no longer a court since clearly it is only as a judge of the court of kings bench and in that courtsupposed to be always existing tnt any proceeding in a cause can take plac before him eith- ther in vacation or in term at this moment there are doubtless in the several gaols of this province priso ners in custody for debt upon process of the court of kings bench it is utterly re pugnant to suppose that they can bo held in custody under the authority of the court of kings bench and yet that if from defect or irregularity in the process they are irregularly confined there is hy reason of the absence of one judge no court which can graut them redress nnd that even in a term appoiuted by law for the sitting of the court this would lead to the absurdity that acts which out of court one judge in va cation can do and must do two judges can not do t court again it is a principal that no man can be a judge in his own case and i cau hard ly suppose it will bethought jliat the legis lature taking the english courts evident- kings bench capable of discharging its functions in term there can be no legal court of kings bench existing in the pro vince for surely nothing could be more absurd and repugnant than to hold that a court exists for the purpose of enabling judges to do acts individually in their chambers which if erroneous could only be redressed in term time and yet to deny that the same judge associated with another judge can in term time grant that remedy or do any other act one judge in vacation may in case of tort or unliquidated damages grant an order to hold to bail he may chance to do this on an insufficient affidavit but if in the ensuing term the unavoidable absence of a single judge disables the court from proceeding there is no opportunity of re lieving the defendant from custody upon what principle it is that the judges transact much of the business ofthe court out of term is very clearly explained in the case of rex vs alinon in lord chief jus tice wilmots arguments and opinions which confirmsin several pointsthe view i have taken ofthe questiou submitted to me there would indeed be no end to the con tradictious the absurdities aud mischiefs that we must be exposed to if the 34th geo 3 is to have any other construction than that which has been always hitherto given and it is unnecessary to multiply in stances at the same time i am ready to admit that the force of arguments drawn from consequences has its limit and that b tpbiateture mifih n ii folly iicc terms which would admit only of a construction such as is contended for what 1 mean to state is that a court would with extreme reluctance adoptaconstruction which must involve them in such absurdities and would gladly and readily rescue themselves from it by finding in other parts of the statute or in subsequent statutes expressions and provisions which shew the meaning of the legislature to have been sensible and ra tional though apparently repugnant to the letter such helps and guides to the constructi on are certainly ut hand in our statute book the provision in the 4th clause of the same act can iu my opinion be recon ciled with no other construction than that hitherto acted upon the writs by the course and practice of the court and upon every principle which governs its proceed ings bear teste in term they are sup posed to be awarded by the court while sitting and it is for that reason they do bear teste iu term but the 4th clause re ferred to expressly provides that iu the absence of the chief justice they shall be tested by the senior judge ofthe court this provision therefore evidently suppos es that the court may be sitting in term witbout a chief justice and in declaring how the writs shall be tested it has regard to that probable occurence and guard against an exception which might have lain if it had declared that the writsshould be tested hy the chief justice to have provided that the names of all the judges should bo nwd wold v venicnt to nave required that the name of the chief justiceshouid be used when there might for a time be none in the pro vince would have been leaving the provi- 11 sion imperfect and the act therefore pru- ly for their model intended abslu tely to p hm chief exclude for the means of redres lor i ik it i ti i ii it i tlj uslslcol wti btuaiuuu ik nature most ordinary as well as the greatest inju ries to person or property all the judges of our court of kings bench a judge it has been decided can not legally form one of a court sitting in judgment npon a case in which he is a party but then if for that reason he must withdraw he would ac cording to the construction lately advanced leave in this province no court capable of acting and consequently must be without remedy if the words ofthe statute were con trary to reason and as i think to their com mon acceptation to be so construed as to render inevitable a dissolution of the court or to disable it from sitting in term when ever death cr absence diminished the number of he judges thru the legislature will be found to have created many ab surdities by their provisions and then also it will be seen that the judges must be in curring the risk of producing evil and inconvenience by almost every act done by them in vacation when an insolvent debtor is entitled to his discharge from custody by reason of failure in paying him the weekly allow ance it is directed by the statute of 1822 that he shall be discharged by the court in turn time or by a judge h vecation it is clear then that a single judge canuot discharge him during term yet surely the legislature can never be supposed to nave intended thatthc chief justice and one judge or that two judges should be una ble ia a term appointed by law for the re gular transaction of the business of the court to do that even in favor of the liber ty ofthe subject which onejudo may do in vacation again by a provincial statute passed in the year 1797 a dilatory plea may be ar gued before a judge in vacation to prevent vexatious delays but it would seem a strange inconsistency if from the chief jus tice being ill or absent in the term in which it is set dowu for argument as the statute directs two judges could not hear and determine it and yet cle their right to sit a a court for that purpose must depend upon the same construction as their riglt to sit for all othe purposes i it seems nufcc ir tital i wi ftio to adopt tlces name would be used when there is a chief justice that ofthe senior puisne judge may be used when there is not but it may and has been objected that the inserting this provision shews that the legislature intended to authorise this one act and this only to be done in the absence ofthe chief justice it would however serve to little purpose to authorise a writ to issue under circumstances that would permit of no proceeding beyond it there can be no chasm in legal proceed ings and if when the writ is made re turnable which the 4th clause declares must be in term time there should be no court that could legally sit the proceed ings must unavoidably be discontinued the necessity for declaring how the writ should be tested here arose from the fact that in england the original process emanates from chancery the similarity therefore intended to he established be tween the two courts failed in the first step and it was felt to be necessary to provide expressly for the object this was done by declaring that the writ should be tested in the name ofthe chief justice or iu his ab sence and the writ is necessarily tested in term by the seinor judge again the 19th section ofthe same pro vincial statute 34 geo 3d provides that upon all issues joined in the said court in any suit or action which shall arise or be triable wit in tio home district or in t c district w ere t e court s all be holden the chief just ice or in his absence any other judge of the said court shall as justice of nisi prius for the said district at their discretion either in ttrm time or within ten days next after the end of eve- ry easter and trinity term rcspective- ly try all manner of issues joined in the said court which ought to he tried by in quest of the said district and that com missions and writs of nisi prius shall be for that purpose from time to time awarded audit shall and maybe lawful for any person or persons upon reasona ble notice as hereinafter set forth given to the adverse party or their attorney to take and sue forth such writs and pe- ords oinisi prius is may be necessary here again is evidently contemplated the possible occurrence ofthe cheif jus tice being abseut in term time and pro vision is expressly made for the contingen cy the 37 geo3d ch 9 provides that all commissions of assize and nisi pri- us shall be issued after the terms of hilary and trinity respectively and shall be tested on the last day of each of those terras and the chief justice ocnuy other judge of the said court in hh oi- scrue shall as judges of assize and nisi prius issue bis precept to the sheriff of the said district for the summoning ol jurors for the trying of all such issue ns may be joined in the said court and a- rise and be triable in the said district as by law he is authorised to do so that the same may he in no instance holden sooner than eight days from the end of hilary and trinity terms respectively both the language and the nature of this provision appear to me to lh6w that the legislature contemplated in this sta- tute also the possible occurrence of the absence of the chief justice in term he 43 ceo 3rd ch 3 was pasted for enabling the government in the eriy settlement of this province to admit per sons by licenses to practice as atovms who had notserved a legal apprentice ship the second clause enacis that before any person shall apply to the go vernor lieutenant governor or person nrlininisiprinp flip government of fhj6 province for such licence as aforesaid such person shall apply to the judges of his majestys court of kings beach i and shall procure from tfuit court a cer tificjite under the hand ofthe chief jus- tice or in his absence ofthe senior puisne judge of the said court that such a court is satisfied of the ability nndfitness ofthe party so applying to be admitted io practice as a barrister and attorney in this province though from the first part ofthe cihmso it may sccrn that the examination of the applicant may take place before tie judges out of court it is from the court of kings bench he is to receive his certi ficate and that certificate obtained from the court is to be under the hand of the chief justice or iu his absence that is ab sence from the court ofthe senior puisne judge- in the same year 1s03 another sta tute was passed so perfectly declaratory ofthe sense of the legislature on the point now in question that i annex a ct py of it it was passed for enabling married women to convey their real estates and is carefully framed keeping distinctly in view the different courts through who intervention the conveyance is to be per fected the third clause evidently pro vides for the probability that when the married woman shall present herefllf to the court sitting in term as married wo men for a similar purpose present them- tlves in the court if nniwuwi pt- england she may lind ihe chief juutico absent and renders sufficient in that ense the certificate ofthe senior puisne judge for this certificate a fee is to be paid to the clerk of the crown who only sits in open court in the court of kings bench in term time and yet it is maintumed that without a chief justice there cau be no such court sitting and that the other two judges have not even the power of adjourning the legislature could scarce ly have meant to direct rccource to be had to a court so constituted that it could not sit for it is to he remembered that the act does not authorize two judges io term time or the senior judge to lake the exa mination c but directs that the married woman is to appear in open court in ii the court of kings bench and directs what shall be done if she finds the court of kings bench sitting in term time as an open court without the chief jnsticc the 57th geo 3 ch9 enacts that when any session of oyer and terraiuer and gaol delivery for the home district shall have been begun to be holden before ti i n ti it 14 the first day of any term the said sessi- on shall continue to be holden and the bu- uess thereof finally concluded notwith standing the sitting ofllis majestys court ti it tt ti ti ii t of a court constituted witn the powers j th conclusion thiit there is not gcurt of m she trial of such issues a aforesaid- 1 court bo gued a open of kings bench wlhin the said district and that all trials and proceedings as well as judgements had at such ses con coutiuued to he golden snail be jojd and effectual to all intents and purp- cs as if tue said session of the court of kings bench had not been the judges of the kings bench in this province are all of them included in every commission of oyer and terminer and are ofthe quorum in the commissions- the criminal court in the home district there fore could not be silting simultauet y with the kings lviich which the statute was meant to providofor without the -b- wir of sonao one judge from the latter court- 1 w the reasonable construction of die act lobe that ma courts were to he enabled to sit within the ordinary business hours of the day in 1633 an act was passed in this pro vince to provide for the publication of the reports ofthe decisions of the court of kinds bench aud it enact that the ue- oorts taken hv t e public reporter jhllj aiir exoiiition h tot hole court bu a- i