CO882-(2-3) — Page 294

PUBLIC RECORD OFFICE

Reference :-

C.O.882

ALLY WITHOUT PERMISSION OF THE COPYRIGHT PHOTOGRAPH-NOT TO BE REPRODUCED PHOTOGRAPHIC-

2 PUBLIC RECORD OFFICE, LONDON

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regulating law. It was followed by one of 16 Prairial, an I, establishing the "Chamber of Notaries," and one of 12 of 1840, enacting a Table of Fees, which has been superseded by 19 of 1856.

9. The Notary receives his appointment from the Governor; but there is a provision in the regulating Ordinance, which requires of a candidate that he shall have served four years in the office of a Notary, and that he must hold a certificate, from the Chamber of Notaries, of capacity and morality. As the Chamber of Notaries is a very small body (thirteen members), these regulations are alleged to place the power of admission or exclusion very much in their hands. I believe the practice to be that the successor of a Notary is virtually arranged for by the retiring member, when the vacancy is created by resignation, or by the relatives of the deceased Notury,-when the vacancy is occasioned by death. The French laws which formed the model of the Colonial Ordinances, were passed shortly after the office of Notary had been regarded as hereditary.

10. By § 43 of 14 Pluviose, an XII, the fees and charges of Notaries were to be fixed amicably between them and the parties, and in their default by the Civil Court on the opinion of the Chamber of Notaries, and on simple memorials free of charge. The Ordinance 12 of 1840, and following it 19 of 1856, limited the documents which could be so charged for amicably to marriage contracts, deeds of separation, and various others enumerated in § 1 of the Ordinance.

11. The Ordinance 19 of 1856 provideď (§ 8) that in case of contestation touching their fees and expenses, the matter should be referred to the Chamber of Notaries for advice, and then to the Master of the Supreme Court, with an appeal to the Court. In practice, the Notaries' costs are countersigned by the President and Secretary of the Chamber of Notaries. The Master seldom, if ever, has been appealed to, but the Court has sometimes interfered proprio motu, when asked to homologate partitions, and such like.

12. The fees which come more particularly under the notice of the Judges of the Supreme Court are those for deeds of partition and for inventories of

successions.

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13. Shortly after my arrival in the Colony, as Substitute Procureur-General, the charges made for a deed of partition* (6001. or 7002.) having appeared exorbitant, I stated my objections to the Court. The substance of these was that the tariff, in allowing a per-centage on the "gross creditor mass (la masse active brute), did not intend that the Notary should include in the "creditor mass all the bad debts due to the estate, and I contended that certain of the assets in the case were purely nominal, being due by bankrupt estates unable to pay dividend. The Court did not sustain these objections in the individual case, but enunciated the opinion that the Notaries were not to be permitted to "keep together as 'gross creditor mass' every claim or asset, good, bad, or doubtful, which they may find belonging to the estate!"

14. An improvement has no doubt followed, but the whole charges for this description of deeds requires remodelling. The great majority of estates here, as is well known, have heavy mortgage claims upon them, and changes are always taking place which require "partitions." The notarial fee for deeds dealing with sums above 2,000!. is "1 per cent. on the gross creditor mass." The creditor mass is taken to be the nominal price, which may be 300,000 dollars when the estate is indebted to the tune of 280,000 dollars. The struggling proprietors, who have scarcely a balance of capital in the concern, are thus, in consequence of some family or partnership changes, involving a partition, saddled with a fee to the Notary of 3,000 dollars, or 6001. In fact, the charge would be a little more by the mode of calculation authorised by the Court in Dupin's case. Latterly, I have seen considerable sums deducted from the regulation fees by the Notaries them- selves; and the Court has, on one or two occasions, declined to homologate deeds of partition unless the fees were reduced, where trifling amounts were involved.

15. The Notary also charges certain "Droits de Role." These were sanctioned by Article 19 of the repealed Ordinance of 1840. The rates then were 4s. 74d. for the first "role" of ninety words, and 31. 74d, for the following after the first two. Now the legal rate appears to be 2. per folio. The retention of this charge, in addition to the percentage, leads to prolixity.

16. A Deed of Partition was recently before the Court where the fee was stated at 1,2001.! An English or Scotch Solicitor would have considered himself well paid for the drawing of such a document, and the meetings, &c., connected therewith,

• Dupin and Latour, September 27, 1870.

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by a sum of 1501, or 2001. There seems no reason whatever why a mode of charging should be continued which leads to results so out of proportion to fair professional remuneration.

17. We have frequently seen the charges for inventories after decease, and for the sale of inoveable property belonging to successions, bear far too great a ratio to the value of the property, and these steps are only the commencement of the legal charges connected with the winding-up of an estate.

18. Not merely in the matter of costs, but also as regards the general mode of performance of notarial duty, 1 think much good might be expected to result from a change of the existing system. It is not necessary to refer in detail to all the reasons which have led me to that opinion, which is quite consistent with a high respect for individual members of the body. I think, for example, the Chamber of Notaries may usefully be dispensed with, so as to place matters of discipline directly under the control of the Procureur-General and the Court, as is the case with regard to other branches of the profession. A Chamber of this kind, however useful, where there is a strong professional body with the most respectable of the class directing affairs and inspiring the whole, must necessarily be inefficient when the whole body consists only of thirteen persons. In its institution the Chamber of Notaries was too close a copy from a home organization to serve any good purpose in a small island.

19. But I am disposed to think that much more extensive and searching changen are needed affecting the position of Notaries and of Attorneys in regard to Notaries before the two branches of the profession can be placed upon such a fair footing with regard to each other as to remove any hesitation from the minds of the Ministère public and the Court in applying strict disciplinary measures with the view of raising the professional standard.

20. This brings us to consider the position of Attorneys in this Colony. It so happens that while the Attorneys are subjected as to their mode of admission and other matters to the same general rules as prevail in the Court of Queen's Bench, and while there is a Table of Fees to regulate their charges (18 of 1856) in matters before the Court, there is no table, and it may almost be said, no customary charges, to regulate their fees, nor any rules established to regulate their professional conduct in matters apart from the conducting of litigations. The only traditions or examples which they have for their guidance are those of the Notaries, with whom, as we have seen, gross charges of 5001. or even 1,2001. are legalized by their tariff. We recently had a case before us where two Attorneys of the best standing stipulated for and received gross sums of 5001. and 1,5001. each for their professional services in a single transaction. Taking the English standard, there would be a breach of professional decorum in making such charges unsupported by any bill of costs, but here the Attorneys might contend with a certain degree of force, that they were only doing what the Court daily recognizes the right of Notaries to do by their tariff embodied in au Ordinance.

21. Unlike the position of the Notaries as regards discipline when an Attorney does any act of an unprofessional nature, the Court by its inherent power may take such steps with regard to inquiry or punishment as it may see fit.

22. The practical result is that the Attorneys in matters relating to law suits are under the régime of English Attorneys. The Notaries in matters of conveyancing follow the French system. There is, in addition, a neutral ground filled by Notaries and Attorneys promiscuously-that of advising in matters of general business, arranging loans, placing the money of capitalists, carrying out private sales, &c., with regard to which no table of fees has been prescribed for Attorneys, and where it might be difficult to say whether professional conduct ought to be judged by French rules relating to the notariat, or English rules affecting Attorneys.

23. In inquiring into the best mode of dealing with such a state of things, I have a very strong opinion (1) that the feeling of the profession is demoralised by the very large fees authorized to be paid to Notaries by the notarial tariff, and professional etiquette confused by the practice of Notaries acting for both parties. It is hard to make one of the branches of the profession understand that they ought not to do what another branch is bound to do; (2) that the Attorneys, as Attorneys in an English Colony, are subjected to a disadvantage by the monopoly of the Notaries. Before we can firmly exact of the Attorneys such a high pro- fessional bearing as is the rule at home, we ought to see that they have the same fair field of earning competent remuneration in the exercise of their profession.

24. I accordingly think that the time has come for opening up to the Attorneys